TERMS AND CONDITIONS OF USE OF THE LISTENKEENLY SERVICE OF DATABASE SCIENCES, INC.
1. General
The ListenKeenly service (the “service”) enables you a client of Database Sciences, Inc. ("we", "us", or "Database Sciences, Inc.") to field a semi-custom Web survey for the purpose of conducting customer satisfaction research. In consideration for the use of Database Sciences, Inc. services, and other good and valuable consideration, the receipt of which is hereby acknowledged, the client of this service assents without modification to the terms and conditions below. Any use of Database Sciences, Inc. and/or the ListenKeenly name or logo must be pre-approved in writing prior to its use by contacting Database Sciences, Inc. at info@dbsciences.com, which will not be unreasonably withheld.
Information and other materials associated with your ListenKeenly surveys will be retained on our Web site while you are an active client of the ListenKeenly service. Thereafter, all your materials pertaining to the ListenKeenly service may be archived unless we agree in writing to retain or maintain such materials on our Web site for a longer time period.
2. Client Data Policy
Database Sciences, Inc. will not use your customer data for any purposes other than those intended by the ListenKeenly service. Your customer information will not be shared with any other parties. Database Sciences, Inc. will not use your customer information for the purpose of sending unsolicited commercial e-mail to such customers. Any ListenKeenly surveys fielded by Database Sciences will adhere to the ListenKeenly privacy policy, which may be found at http://www.listenkeenly.com/privacy.html
3. E-mail Policy
We are fully compliant with the United States' Can-Spam legislation. As such, you warrant that you will only send (or request that we send on your behalf) ListenKeenly survey invitations to customers of your establishment.
4. Limitation of Liability
Although Database Sciences, Inc. uses reasonable measures to ensure the accuracy of the ListenKeenly services, and Database Sciences, Inc. will comply with all applicable laws in providing the ListenKeenly services, Database Sciences, Inc. and its affiliates, parents, subsidiaries, licensees, and agents, and the respective officers, directors and employees of each of the forgoing will have no liability for any claims, loss, or damages resulting from your use of the information of the service and you assume complete responsibility for the use of any data, information, or reports provided by Database Sciences, Inc., except for those claims, losses, or damages resulting from the gross negligence or intentional act or omission of Database Services, Inc. Database Sciences, Inc. will take reasonable measures consistent with industry standards to ensure the confidentiality of surveys, in part or entirety, or any information that it collects or maintains on your behalf as part of our services. However, Database Sciences, Inc. cannot guarantee absolute security of any survey, in part or entirety, or information. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICE, INFORMATION AND MATERIALS IN THE DATABASESCIENCES.COM, LISTENKEENLY.COM, GUESTINSIGHT.COM, AND ASSOCIATED WEB SITES (THE DATABASE SCIENCES WEB SITES). ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DATABASE SCIENCES, INC. AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSEES, AND AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES OF EACH OF THE FORGOING HEREBY DISCLAIM ALL WARRANTIES AND LIABILITY FOR ERRORS, OMISSIONS, INADEQUACIES, MISUSE, OR INTERPRETATIONS OF ANY DATA, INFORMATION, OR REPORTS PROVIDED BY DATABASE SCIENCES, INC., SOFTWARE, PRODUCTS, AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES PUBLISHED ON THE DATABASE SCIENCES WEB SITES MAY INCLUDE INACCURACIES OR ERRORS. DATABASE SCIENCES, INC. AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSEES, AND AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES OF EACH OF THE FORGOING MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THE DATABASE SCIENCES WEB SITES FOR ANY PURPOSE NOR DOES DATABASE SCIENCES, INC. AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSEES, AND AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES OF EACH OF THE FORGOING WARRANT THAT THE FUNCTIONS PERFORMED BY THE DATABASE SCIENCES WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DATABASE SCIENCES, INC. DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. DATABASE SCIENCES, INC. RESERVES THE RIGHT AT ANY TIME TO UPDATE, CHANGE, MODIFY, OR IMPROVE THE FUNCTIONS AND/OR INFORMATION THAT IS PROVIDED BY THE DATABASE SCIENCES WEB SITES. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
5. Indemnification
Client will indemnify and hold Database Sciences, Inc. (and its affiliates, parents, subsidiaries, licensees, and agents, and the respective officers, directors and employees of each of the forgoing) harmless from and against any and all claims arising out of the client’s use of the ListenKeenly service and/or the client’s breach or alleged breach of this agreement, except for those claims, resulting from the gross negligence or intentional act or omission of Database Services, Inc. Client will pay all costs associated with any such claim(s), including (without limitation) reasonable expenses and attorney’s fees, and will defend at its own expense any litigation related to such claim(s) that may be instituted against Database Sciences, Inc. Database Sciences, Inc. shall have the right, at its option, to jointly defend any such action. Client will provide prompt written notice of any claim that may expose Database Sciences, Inc. to liability under this agreement.
Database Sciences, Inc. will indemnify and hold Client (and its respective officers, trustees and employees) harmless from and against any and all claims arising out of Database Sciences, Inc.’s breach of this agreement, except for those claims, resulting from the grossly negligent or intentional act or omission of Client. Additionally, Database Sciences, Inc. will indemnify, defend, and hold harmless Client against any and all third party claims that the ListenKeenly services infringe any intellectual property right or other proprietary right; no limitation of liability set forth elsewhere herein shall apply to this indemnification. Database Sciences, Inc. will pay all costs associated with any such claim(s), including (without limitation) reasonable expenses and attorney’s fees, and will defend at its own expense any litigation related to such claim(s) that may be instituted against Client.
6. Disputes
As a condition of using the ListenKeenly service, client agrees that any and all disputes that cannot be resolved between the parties, and any and all causes of action arising out of or connected with the ListenKeenly service, shall be resolved individually, without resort to any form of class action, exclusively, before a court located in the State of New Jersey having competent jurisdiction, which Court shall apply the laws of the State of New Jersey without regard to its conflicts of laws principles. Further, in any such dispute, under no circumstances will either party be permitted to obtain awards for and hereby waives all rights to claim punitive, incidental or consequential damages, or any other damages, including attorneys' fees (except as set forth elsewhere herein), and both parties further waive all rights to have damages multiplied or increased.
7. Payment Terms
Payments are due within 30 days of receipt of an invoice from Database Science, Inc. Past due amounts will accrue interest at the greater of one and one-half percent (1.5%) per month, or the highest rate permitted by law.
8. Termination
Database Sciences, Inc. may immediately suspend or terminate all service to any and all client accounts which are 30 days past due. Database Sciences, Inc. may immediately suspend or terminate all service to any and all client accounts which it believes, in its sole discretion, is violating the E-mail policy listed above (3.). Upon suspension or termination of service, Client’s right to use the Database Sciences, Inc. services immediately ceases and Database Sciences, Inc. shall have no obligation to maintain any content associated with Client’s accounts or to forward any information or data to the Client or any third party.
9. Miscellaneous
Database Sciences, Inc. expressly reserves the right to change the terms, conditions, and notices under which the ListenKeenly service is offered, with reasonable notice to Client. If any provision of these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. If any part of these Terms and Conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Written notice under this agreement will be sent to either party at the address set forth below and delivered by courier or overnight commercial carrier.
Sections 4, 5, 6 and 9 will survive the expiration or any termination of this agreement.
1. General
The ListenKeenly service (the “service”) enables you a client of Database Sciences, Inc. ("we", "us", or "Database Sciences, Inc.") to field a semi-custom Web survey for the purpose of conducting customer satisfaction research. In consideration for the use of Database Sciences, Inc. services, and other good and valuable consideration, the receipt of which is hereby acknowledged, the client of this service assents without modification to the terms and conditions below. Any use of Database Sciences, Inc. and/or the ListenKeenly name or logo must be pre-approved in writing prior to its use by contacting Database Sciences, Inc. at info@dbsciences.com, which will not be unreasonably withheld.
Information and other materials associated with your ListenKeenly surveys will be retained on our Web site while you are an active client of the ListenKeenly service. Thereafter, all your materials pertaining to the ListenKeenly service may be archived unless we agree in writing to retain or maintain such materials on our Web site for a longer time period.
2. Client Data Policy
Database Sciences, Inc. will not use your customer data for any purposes other than those intended by the ListenKeenly service. Your customer information will not be shared with any other parties. Database Sciences, Inc. will not use your customer information for the purpose of sending unsolicited commercial e-mail to such customers. Any ListenKeenly surveys fielded by Database Sciences will adhere to the ListenKeenly privacy policy, which may be found at http://www.listenkeenly.com/privacy.html
3. E-mail Policy
We are fully compliant with the United States' Can-Spam legislation. As such, you warrant that you will only send (or request that we send on your behalf) ListenKeenly survey invitations to customers of your establishment.
4. Limitation of Liability
Although Database Sciences, Inc. uses reasonable measures to ensure the accuracy of the ListenKeenly services, and Database Sciences, Inc. will comply with all applicable laws in providing the ListenKeenly services, Database Sciences, Inc. and its affiliates, parents, subsidiaries, licensees, and agents, and the respective officers, directors and employees of each of the forgoing will have no liability for any claims, loss, or damages resulting from your use of the information of the service and you assume complete responsibility for the use of any data, information, or reports provided by Database Sciences, Inc., except for those claims, losses, or damages resulting from the gross negligence or intentional act or omission of Database Services, Inc. Database Sciences, Inc. will take reasonable measures consistent with industry standards to ensure the confidentiality of surveys, in part or entirety, or any information that it collects or maintains on your behalf as part of our services. However, Database Sciences, Inc. cannot guarantee absolute security of any survey, in part or entirety, or information. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICE, INFORMATION AND MATERIALS IN THE DATABASESCIENCES.COM, LISTENKEENLY.COM, GUESTINSIGHT.COM, AND ASSOCIATED WEB SITES (THE DATABASE SCIENCES WEB SITES). ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DATABASE SCIENCES, INC. AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSEES, AND AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES OF EACH OF THE FORGOING HEREBY DISCLAIM ALL WARRANTIES AND LIABILITY FOR ERRORS, OMISSIONS, INADEQUACIES, MISUSE, OR INTERPRETATIONS OF ANY DATA, INFORMATION, OR REPORTS PROVIDED BY DATABASE SCIENCES, INC., SOFTWARE, PRODUCTS, AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES PUBLISHED ON THE DATABASE SCIENCES WEB SITES MAY INCLUDE INACCURACIES OR ERRORS. DATABASE SCIENCES, INC. AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSEES, AND AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES OF EACH OF THE FORGOING MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THE DATABASE SCIENCES WEB SITES FOR ANY PURPOSE NOR DOES DATABASE SCIENCES, INC. AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSEES, AND AGENTS, AND THE RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES OF EACH OF THE FORGOING WARRANT THAT THE FUNCTIONS PERFORMED BY THE DATABASE SCIENCES WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DATABASE SCIENCES, INC. DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. DATABASE SCIENCES, INC. RESERVES THE RIGHT AT ANY TIME TO UPDATE, CHANGE, MODIFY, OR IMPROVE THE FUNCTIONS AND/OR INFORMATION THAT IS PROVIDED BY THE DATABASE SCIENCES WEB SITES. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
5. Indemnification
Client will indemnify and hold Database Sciences, Inc. (and its affiliates, parents, subsidiaries, licensees, and agents, and the respective officers, directors and employees of each of the forgoing) harmless from and against any and all claims arising out of the client’s use of the ListenKeenly service and/or the client’s breach or alleged breach of this agreement, except for those claims, resulting from the gross negligence or intentional act or omission of Database Services, Inc. Client will pay all costs associated with any such claim(s), including (without limitation) reasonable expenses and attorney’s fees, and will defend at its own expense any litigation related to such claim(s) that may be instituted against Database Sciences, Inc. Database Sciences, Inc. shall have the right, at its option, to jointly defend any such action. Client will provide prompt written notice of any claim that may expose Database Sciences, Inc. to liability under this agreement.
Database Sciences, Inc. will indemnify and hold Client (and its respective officers, trustees and employees) harmless from and against any and all claims arising out of Database Sciences, Inc.’s breach of this agreement, except for those claims, resulting from the grossly negligent or intentional act or omission of Client. Additionally, Database Sciences, Inc. will indemnify, defend, and hold harmless Client against any and all third party claims that the ListenKeenly services infringe any intellectual property right or other proprietary right; no limitation of liability set forth elsewhere herein shall apply to this indemnification. Database Sciences, Inc. will pay all costs associated with any such claim(s), including (without limitation) reasonable expenses and attorney’s fees, and will defend at its own expense any litigation related to such claim(s) that may be instituted against Client.
6. Disputes
As a condition of using the ListenKeenly service, client agrees that any and all disputes that cannot be resolved between the parties, and any and all causes of action arising out of or connected with the ListenKeenly service, shall be resolved individually, without resort to any form of class action, exclusively, before a court located in the State of New Jersey having competent jurisdiction, which Court shall apply the laws of the State of New Jersey without regard to its conflicts of laws principles. Further, in any such dispute, under no circumstances will either party be permitted to obtain awards for and hereby waives all rights to claim punitive, incidental or consequential damages, or any other damages, including attorneys' fees (except as set forth elsewhere herein), and both parties further waive all rights to have damages multiplied or increased.
7. Payment Terms
Payments are due within 30 days of receipt of an invoice from Database Science, Inc. Past due amounts will accrue interest at the greater of one and one-half percent (1.5%) per month, or the highest rate permitted by law.
8. Termination
Database Sciences, Inc. may immediately suspend or terminate all service to any and all client accounts which are 30 days past due. Database Sciences, Inc. may immediately suspend or terminate all service to any and all client accounts which it believes, in its sole discretion, is violating the E-mail policy listed above (3.). Upon suspension or termination of service, Client’s right to use the Database Sciences, Inc. services immediately ceases and Database Sciences, Inc. shall have no obligation to maintain any content associated with Client’s accounts or to forward any information or data to the Client or any third party.
9. Miscellaneous
Database Sciences, Inc. expressly reserves the right to change the terms, conditions, and notices under which the ListenKeenly service is offered, with reasonable notice to Client. If any provision of these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. If any part of these Terms and Conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Written notice under this agreement will be sent to either party at the address set forth below and delivered by courier or overnight commercial carrier.
Sections 4, 5, 6 and 9 will survive the expiration or any termination of this agreement.
