(the ‘Terms’)
Last Updated: January 14, 2019
Welcome to VizualSurvey. VIZUALSURVEY LLC is a company registered in the State of Wyoming, U.S., whose registered office is at 30 N Gould St Ste R, Sheridan, WY 82801. The following terms and conditions (the “Terms") govern all use by you as a user, business, organization, visitor (collectively “User”, “You”, “Your” or “Subscriber”) of (a) VizualSurvey’s ( “VS”, “Us”, “Our”, “We”)) websites and domains (including all webpages, subdomains and subparts therein contained, the “Site", (b) any and all services available on or through the Site or otherwise provided by Service Provider in connection with Services listed on the Site, and (c) all Software (as defined below) (collectively, the “Services"). The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by VIZUALSURVEY. BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY VS. IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES.
1 DEFINITIONS AND INTERPRETATIONS
The definitions to be read with these Terms are set out in full at Clause 23.
2 INTRODUCTION
2.1 VS has developed certain software applications and VS-branded platforms to assist end users on collecting and transforming survey data into a more effective format using our secure platform (‘VizualSurvey Software’). VS Services are accessible at https://vizualsurvey.com/ (the ‘Site’).
2.2 This Agreement shall consist of Data Protection Policies and these Terms.
2.3 Users understand and acknowledge that these Terms are exclusive and applicable to residents of North America only.
3 GENERAL
3.1 VS shall provide the VS Services and Users may use and shall pay for the VS Services subject to these Terms dependent on the subscription plan purchased.
3.2 By using any VS Services, You expressly agree to be bound by these Terms and all applicable legislation and codes of practice governing VS Services.
3.3 These Terms form a legally binding agreement between You and VS in relation to Your use of VS Services and applies to all VS Subscribers and Users.
3.4 If You violate these Terms or any terms in the Agreement, VS may terminate Your use of the Site and/or Services, bar You from future use of the Site and/or take appropriate legal action against You.
3.5 Words denoting an obligation on You to do any act, matter or thing includes an obligation to procure that it be done and words placing You under an obligation or a restriction include an obligation not to permit or allow infringement of the obligation or restriction.
4 REGISTRATION
4.1 Once You have agreed to VS terms and conditions, VS will generate Your Client Account.
4.2 VS requires your first name, last name, user name and email address for account registration. Following the registration process, a username will be created.
4.3 All details submitted by You must be true, accurate and complete.
4.4 Upon successful verification, a User will receive an email with temporary unique login credentials (‘VS Sign In’). Upon login you must change your temporary password that we assigned to you.
4.5 You will keep your VS Sign In details confidential and will not reveal them to anyone else. You shall be responsible for all activities that are carried out under Your VS Sign. VS will not be liable where a VS Sign In is unlawfully used by another person. You agree to notify VS immediately by email to [email protected] of any such unauthorized use.
5 VS SOFTWARE SUBSCRIPTION PACKAGE
5.1 Upon registration: VS hereby grants to You a non-exclusive, non-transferable right to use VS Services during the Subscription Term solely for Your internal business or personal operations.
5.2 VS is entitled to make any changes to the specification, functionality and features of the VS Software that it desires at its sole discretion but shall provide notice of the same to You where necessary.
5.3 You shall not access, store, distribute or transmit any Viruses, or any other material during the course of Your use of the VS Services that in VS’ sole discretion is unacceptable or illegal and VS reserves the right, without liability or prejudice to its other rights to You, to disable Your access to any material that breaches the provisions of this Clause.
5.4 You shall not:
a. except as may be allowed by any applicable law which is incapable of exclusion by agreement between You and VS, and except to the extent expressly permitted under these Terms:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the VS Software in any form or media or by any means; or,
ii. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the VS Software;
b. access all or any part of the VS Services and Documentation in order to build a product or service which competes with the VS Services; or
c. use VS Services and/or Documentation to provide services to third parties; or,
d. subject to Clause 20 on Assignment, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the VS Services available to any third party except the Authorized Users; or,
e. attempt to obtain, or assist third parties in obtaining, access to the VS Services and/or Documentation, other than as provided under this Clause 5.
5.5 You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the VS Services and, in the event of any such unauthorized access or use, promptly notify VS.
5.6 The rights provided under this Clause 5 are granted to You only, and shall not be considered granted to any subsidiary, partnership, or any holding company.
6 FEES & PAYMENTS
6.1 Subject to Clause 5, VS offers a number of ‘Subscription Packages’ which are subject to pricing changes, availability and content.
6.2 All Subscription Packages are displayed in American Dollars (“USD, “US currency”).
6.3 The Subscription Term for Our Subscription Packages together with any subsequent Renewal Subscription Terms shall constitute the ‘Subscription Term’.
6.4 Where applicable, Users will be billed according to subscribed packages paid via third-party vendor, “Stripe”. Users warrant and represent that they are authorized to use the payment information provided to Stripe. All fees and Subscription Packages are non-refundable except as required by law.
6.5 Subscription renewal is automatic. Any Renewal Subscription Term will be in accordance with these Terms (as may be updated or amended from time to time). The latest contemporary content and features of the applicable VS Software Subscription Package will apply.
6.6 Should You decide not to renew, You may cancel your account on the VS DASHBOARD.
6.7 In the event of any payment dispute, You shall pay the amount in full, pending the resolution of any dispute and, upon resolution, VS shall (if necessary) pay any adjustment due within thirty (30) Business Days. You agree to pay all amounts due in full and You shall not, for any reason whatsoever, be entitled to assert any credit, set-off or counterclaim against VS in order to justify withholding payment of any such amount in whole or in part.
7 TAXES
7.1 All Subscription Packages are subject to state and/or Federal taxes. Prices published on the Site do not include taxes.
7.2 Users in other (national) and (international) jurisdictions may be subject to additional fees, duties, taxes or levies.
8 PRIVACY
8.1 VizualSurvey takes the privacy of its Users and Subscribers very seriously. Following the upload or storage of your content, VizualSurvey will adhere to its Data & Privacy Policy found here
8.2 You agree that any content and/or information you upload or collect on the Site does not contain unauthorized personal information and/or illegally obtained information.
8.3 You also agree that You will adhere to all applicable privacy laws and data protection regulations of your jurisdiction.
9 VS DASHBOARD TEMPLATES
9.1 VS provides dashboard templates for Users and Subscribers to use to assist in visualizing data.
9.2 VS provides dashboard templates as a free service on an “as-is” basis.
9.3 VS is not responsible or liable for incomplete, inaccurate, or non-updated figures or calculations that may be found within or arising from dashboard templates.
9.4 Users are advised to use dashboard templates at their own discretion.
10 INTELLECTUAL PROPERTY
10.1 All Intellectual Property Rights following the upload or storage of Data, as between Users and VS, shall be the exclusive property of the User (unless the Parties agree otherwise in writing). You may not use any of our Intellectual Property Rights without our prior written consent, barring copyrighted or patented information or documents uploaded by the User or Subscriber.
10.2 You shall promptly give notice in writing to VS in the event that You become aware of any claim that any of the Client Intellectual Property Rights infringes the rights of any third party, including in the event of a DMCA Notice received by You. In such an event, VS shall, at its absolute discretion, determine what action if any it shall take in respect of the matter (including immediately terminating these Terms) and You shall fully indemnify VS for and against any damages, losses, costs and expenses (including reasonable legal costs and expenses) or other liabilities incurred by VS as a result of such claim.
11 USER OBLIGATIONS
11.1 You shall (and where applicable shall procure that Authorized Users shall):
a. provide VS with:
i. all necessary co-operation in relation to these Terms; and,
ii. all necessary access to such information as may be required by VS;
b. operate Your project or business in accordance with applicable state and federal regulations;
c. comply with all VS Legal Policies when using the Site and Services;
d. ensure that the Authorized Users use VS Services and data in accordance with these Terms and shall be responsible for any Authorized User’s breach of these Terms;
e. obtain and maintain all necessary licenses, consents, and permissions necessary for VS, its contractors, agents, partners to perform their obligations under these Terms, including without limitation the VS Services;
f. be solely responsible for procuring and maintaining that Your network connections, internet connections and telecommunications during API connections or uploads.
12 SECURITY
12.1 VS shall store and process your data in a way that is consistent with industry security standards. VS has instated a number of policies and regulations in order to comply with U.S. safety and security standards.
12.2 If VS becomes aware of unlawful use or unauthorized access to your Account or data, VS will take reasonable steps to notify you without impending delay. However, VS is not responsible or liable for any unlawful or unauthorized access of your account.
12.3 VS shall comply with all governmental requests for information and court orders.
13 DATA PROTECTION, OWNERSHIP & DATA LOSS
13.1 In respect of Data (as defined under “Business Contact Information” under the Federal Trade Commission Act (15 U.S. Code 41 et seq.) pursuant to these Terms including Survey Data (as defined) (together, ‘Data’), where applicable, VS warrants that it:
a. has collected, used, or disclosed personal information of the User for purposes that are reasonable while protecting the right of the User to have his or her personal information and Intellectual Property are protected;
b. complies and will continue to comply with the applicable state and federal privacy laws and any regulations made thereunder;
c. will co-operate fully in complying with any subject access requests made pursuant to the applicable Data Protection Laws.
13.2 VS shall designate a Data Protection officer to ensure compliance with User’s Intellectual Property and, Personal Information, and Survey Data;
13.3 User warrants that it is responsible for personal information that is under its custody and control;
13.4 In the event of any loss or damage to Survey Data, VS shall use all reasonable commercial endeavors to restore the lost or damaged Survey Data from the latest back-up if such back-up exists. However, VS shall not be responsible or legally culpable for lost, incomplete or otherwise damaged Survey Data and does not guarantee that lost data will be recovered. VS shall not be responsible for any destruction, alteration or disclosure of Survey Data caused by any third party.
14 CONFIDENTIALITY
14.1 Save as is otherwise required by law or any regulatory authority, VS undertakes that during the Subscription Term and thereafter it shall keep private and shall not without the prior written consent of the other Party disclose to any third party (except to its legal and professional advisers) any Confidential Information, Data, and Client Intellectual Property learned by the recipient Party or disclosed to the recipient Party by such other Party pursuant to, or otherwise in connection with these Terms, except to the extent that any Confidential Information:
a. is (otherwise than by breach of these Terms) in the public domain; or,
b. is already known by the recipient Party other than pursuant to disclosure from the User;
c. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
14.2 To the extent that it is necessary to give effect to these Terms, VS may disclose Confidential Information to its independent contractors and agents as may reasonably be necessary provided that VS shall:
a. before disclosure, make such independent contractors and agents aware of their obligations of confidentiality under these Terms;
b. at all times procure compliance with such obligations of confidentiality; and
c. if requested by the disclosing party, procure named independent contractors and agents to execute a confidentiality agreement directly in favor of the disclosing party.
14.3 This Clause 14 shall survive termination of these Terms howsoever arising.
15 ACCOUNT TERMINATION & CANCELLATION
15.1 VS may terminate a User account with immediate effect without liability by written notice on the User or Subscriber and without prejudice to its rights, if the User and/or Subscriber:
a. Uploading or collecting sexually explicit content pertaining to minors, Uploading or collecting illegally obtained content, Uploading or collecting content that falls below the test of Moral Turpitude or the User/Subscriber Uploading or collecting Data or content that VS deems inappropriate;
b. is in material breach of this Agreement where the breach is incapable of remedy; or
c. is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty (30) days after receiving written notice of such breach or other default from the non-defaulting Party;
or if any of the following events occur:
d. User and/or Subscriber is, unable to pay its debts as they fall due for payment;
e. a petition is presented or documents filed with a court or any registrar or any resolution is passed for its winding-up, administration or dissolution or for the seeking of relief under any applicable bankruptcy, insolvency, company or similar law;
f. any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, supervisor, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets; or
g. any event analogous to the events listed in (c) to (e) above takes place in respect of it in any jurisdiction.
15.2 Clause 15.1 d – f above does not apply to a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and which is discharged or struck out within twenty-one (21) days.
15.3 VS may suspend access to VS Services with immediate effect at any time during the Subscription Term if User is in material breach of any obligation in this Agreement which shall include, but is in no way limited to, invalid payment or non-payment.
15.4 On Account Termination:
a. all rights granted under these Terms shall immediately terminate;
b. each Party shall return and make no further use of any property including any Intellectual Property Rights (and all copies of them) belonging to the other Party; and
c. VS may destroy or otherwise dispose of any of the User’s Data in its possession unless VS receives, no later than sixty (60) days after the effective date of the termination of these Terms, a written request for the delivery to Client of the then most recent back-up of the Data. VS shall use reasonable commercial endeavor to deliver the back-up to User within thirty (30) days of its receipt of such a written request, provided that User has, at that time, paid all VS Subscriber Fees outstanding at, and resulting from, termination (whether or not due at the date of termination).
15.5 Users may cancel their accounts by using the VS Dashboard or by providing five (5) days’ Business Notice prior to the beginning of a new Subscription cycle. Email requests for cancellation following a new billing cycle will be honored in the next billing cycle.
16 WARRANTIES AND INDEMNITIES
16.1 You hereby warrant, represent and undertake to VS that these Terms constitute Your valid, legal and binding agreement, enforceable in accordance with its Terms.
16.2 In no event shall VS be liable to You to the extent that the alleged infringement is based on:
a. a modification of the VS Software, VS Services or Documentation by anyone other than VS; or,
b. Your use of the VS Software, VS Services or Documentation in a manner contrary to the instructions given to You by VS; or,
c. Your use of the VS Software and VS Services or Documentation after notice of the alleged or actual infringement from VS or any appropriate authority.
16.3 While VS conducts its storage operations safely and securely, with all reasonable efforts taken to ensure the safe storage of data and Software on its servers, User acknowledges that Software is never wholly free from defects, errors, bugs (and security vulnerabilities), and cyber attacks; and subject to the other provisions of these Terms, VS gives no warranty or representation that VS Services will be wholly free from defects, errors and bugs (or will be wholly secure).
17 LIMITATION OF LIABILITY
17.1 This Clause 17 sets out the entire liability of VS (including any liability for the acts or omissions of its agents and sub-contractors) to Users:
a. arising under or in connection with these Terms;
b. in respect of any use made by You of VS Software and Services or any part of them; and,
c. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
17.2 Subject to Clause 17.4, VS shall not be liable to You in contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms.
17.3 VS's total aggregate and maximum liability, in contract (including in respect of the indemnity at Clause 16.3), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid to VS during the three (3) continuous months immediately preceding the date on which the Claim arose.
17.4 Subject to Clause 17.3 VS shall not be limited to the total Subscription Fees paid to VS with respect to third-party IP infringement indemnification.
17.5 Nothing in this Clause 17 shall however exclude or restrict VS’s liability for (i) fraudulent misrepresentations, (ii) any liability where the law does not permit such exclusion of liability, and (iii) death or personal injury arising from negligence.
17.6 VS shall not be in breach of any of its obligations under these Terms which arise or occur due to the act, omission, and default of You or Your failure to comply with any of its obligations under these Terms. Except as expressly set out in these Terms:
a. no conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the VS Software, Services or to anything supplied or provided by VS under this Agreement which are all provided to You on an ‘as is’ basis. You acknowledge that the service may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
b. You assume sole responsibility for the results obtained from the use of the VS Services and the Documentation and for conclusions drawn from such use; and,
c. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms.
18 FORCE MAJEURE
VS shall have no liability to User under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by one or more Force Majeure Events provided that the User is notified of such and the expected duration.
19 NOTICES
19.1 Any notice given or made under these Terms shall be in writing and in English and signed by or on behalf of the Party giving it and shall be:
a. sent by pre-paid USPS first-class post or recorded delivery post by the User at the address set out in these Terms at 30 N Gould St Ste R, Sheridan, WY 82801; or,
(A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
b. by email to [email protected]
(A notice sent by email shall be deemed to be received as verified by automated receipt or electronic log.)
19.2 User understands that the provisions of this Clause shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with these Terms or the legal relationships established by these Terms.
20 GENERAL
Assignment: These Terms shall be binding on and inure to the benefit of each of User and VS.
Enforceability: If any one or more of the provisions of these Terms should be held to be invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions contained in these Terms shall not in any way be affected or impaired and User and VS shall amend these Terms to add a new provision having an effect as near as legally permissible to the one held to be invalid, illegal or unenforceable.
Entire Agreement: These Terms constitutes the entire agreement and understanding between Users and VS with respect to the subject matter of these Terms and supersedes any and all prior contracts, licenses, arrangements and understandings relating to the matters provided for herein.
21 RIGHTS OF THIRD PARTIES
Save for a VS Party, a person who is not a Party to these Terms has no right to enforce these Terms.
22 GOVERNING LAW & JURISDICTION
These Terms and any dispute or claim arising out of or in connection with it or its subject matter, whether of a contractual or non-contractual nature, shall be governed by and construed in accordance with the laws of the State of Wyoming, U.S.A. The Parties agree to submit to the exclusive jurisdiction of a Wyoming county or civil court in respect of any dispute arising out of or in connection with these Terms.
23 DEFINITIONS & INTERPRETATION
In these Terms (except where the context otherwise requires) the following words shall have the following meanings:
Agreement: means all the documentation containing the provisions of the Agreement, namely the main body of these Terms, including any amendments to that documentation from time to time.
Authorized Users: those agents and independent contractors of User/Subscriber who are authorized by Subscriber to use VS Services as additional Users.
Business Day: any day which is not a Saturday, Sunday or public holiday in the United States.
Business Hours: means the hours of 09:00 to 17:00 EST on a Business Day.
Claim(s): means all demands, claims and liability (actual and consequential and direct and indirect and whether known and unknown, suspected and unsuspected, disclosed and undisclosed, criminal or civil, in contract, tort or otherwise) for all Losses including any other expenses of any nature whatsoever.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 14.
Data: means all the data, information, works and materials uploaded, collected or stored on the VS Platform by the User or Subscriber, or Authorized Users as a result of the use of the VS Services by the User (which may or may not constitute Personal Data).
Data Protection Law: means all applicable data protection laws, personal information laws, regulations, legislative and regulatory requirements and codes of practice.
Documentation: the policies, procedures and/ or written instructions provided by VS to ensure the safety and security of its Services and Site.
Effective Date: means the date upon which the Terms are in effect or otherwise updated.
Force Majeure Event: any happening or event beyond the reasonable control of the Party concerned including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of VS or any other party), failure of a utility service or transport or telecommunications network, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, any act of God including fire, flood, earthquake, windstorm or other natural disaster; war, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, mass shooting, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; fire, explosion or accidental damage; extreme adverse weather conditions; mandatory compliance with any law (including a failure to grant any license or consent needed or any change in the law or interpretation of the law) which results in a failure or delay in the performance of that Party’s obligations under this Agreement.
Intellectual Property Rights: patents, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: claims, losses, demands, actions, third party claims, damages, costs (including court costs and legal fees), fines, liabilities, obligations, liens and expenses.
Personal Information: means Personal Data (as defined in the applicable Personal Information Protection Laws) pertaining to Users and Subscribers, and shall include name, email, telephone numbers, and addresses.
Renewal Subscription Term(s): refers to the renewal period(s).
Subscription Fees: the subscription fees payable by Subscriber to VS for use of VS Services.
Subscription Term: refers to the Initial Subscription Term together with any subsequent Renewal Subscription Terms.
Support Services: means support in relation to the use of, and the identification and resolution of errors in, the VS Services.
Terms: refers to these VS SaaS Terms
User Account: refers to the online account accessible by way of a VS Sign-In.
User Intellectual Property: User’s trademarks, business names and branding and all other Intellectual Property Rights owned by or licensed to User.
Virus: anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
VS Dashboard: refers to VizualSurvey’s online portal whereby Users may make account changes.
VS Intellectual Property: refers to all intellectual property present on or in the Site and the App Site including all of the text, images, trademarks, business names, domain names, VS Software (including source code), media, other materials and other content within the same but excluding the User Intellectual Property.
VS Parties/ Party: includes VS and its affiliated or related companies and subsidiaries and their respective joint ventures, successors, assigns, directors, sub-contractors, officers and agents.
VS Platform: refers to the platform managed by VS and used by VS to provide the VS Services inclusive of the VS Software as applicable which is accessible by way of the VS Login, the system and server software used and the computer hardware on which that application, database, system and server software is installed.
VS Services: the subscription based, hosted VS Software as a Service provided by VS to User or Subscriber via the VS Platform under these Terms.
User Intellectual Property: User’s trademarks, business names and branding and all other Intellectual Property Rights owned by or licensed to the User or Subscriber.
VS Software Subscription Package: refers to the type of package purchased or signed up for by the User as published on VizualSurvey’s Site.
VS Subscriber: refers to a User who has subscribed to the VS Services by purchasing or signing up to one of VS’s Subscription Packages.