customers agree to the following terms and conditions.
Customer Service Agreement (this "Agreement") is by and between
K&K Ventures, LLC, a California LLC, DBA ZapSurvey ("ZapSurvey")
and the company (or other entity) acknowledging this Agreement
Provision of Service.
(a) ZapSurvey will provide Customer access to the Internet survey service (the
"Service") which will permit the development, distribution and
reporting of online surveys by Customer (the "Customer Data")
pursuant to the terms of this Agreement.
ZapSurvey may change Service features
and functionality, as well as the terms and conditions of this Agreement, from
time to time. Notice of such changes will be posted on the ZapSurvey Web site (the
"Web Site"), which Customer will review periodically.
(c) Any and all Service features and functionality that are provided on either a free or trial basis may be changed or suspended at any time with no notification requirement by ZapSurvey.
(c) Customer is
responsible for its own compliance with this Agreement, including without
limitation the compliance of its employees, officers, agents, and any third
party that Customer invites to participate in the Service.
(a) Customer's use of the Service may result in fees as will be set forth on
the Web Site. Fees for the Service will not be incurred until the Customer
registers for a paid, subscription account. The Service fees and charges may be
changed by ZapSurvey from time to time by sending Customer an invoice, in
electronic, paper or any other form, or by posting fees owed on the Web Site.
Customer agrees to pay said fees within thirty (30) days of receipt of such
invoice. Customer will pay on all amounts past due, that have not been disputed
specifically in writing and in reasonable good faith, an interest charge of one
and one-half percent (1.5%) per month computed from the due date of each
payment, or the maximum rate permitted by California law. Customer will be
liable for attorneys' and collection fees arising from ZapSurvey's efforts to
collect unpaid balances.
(b) All payments will be in U.S. dollars.
(c) Customers may select credit card payment options, pursuant to which
ZapSurvey will charge fees directly to a Customer's credit card, when such
option is made available by ZapSurvey and pursuant to such terms and conditions
as ZapSurvey may post on the Web Site from time to time.
Automatic subscription renewal - by subscribing to ZapSurvey, Customer agrees
that their subscription will renew automatically on a monthly or annual basis
as selected by the customer and will continue to renew until cancelled.
Customer chooses to discontinue ZapSurvey Services, customer must cancel their
subscription via the ZapSurvey site. Customer will be responsible for all
charges incurred up to the date the Customer cancels their subscription.
ZapSurvey will not prorate Customer's invoice for a partial month's usage
Recurring billing - Customer consents that ZapSurvey may charge their credit
card on a recurring basis without additional authorization and/or invoice
Customer for payment by check for 1. Monthly subscription charges if monthly
subscription option selected, 2. Annual subscription charges if annual
subscription option selected and 3. Monthly amounts due for the "per response" fee charged for all survey responses exceeding the monthly number included with
(f) Customer agrees to pay all state and local sales, use, property, or other
taxes (collectively, "Chargeable Taxes"), except for taxes on
ZapSurvey's net income which may be assessed against ZapSurvey with respect to
this Agreement. ZapSurvey may include Chargeable Taxes in its invoices, in
which event Customer will pay to ZapSurvey the taxes so invoiced.
(g) All overdue balances and
accounts will be forwarded to Dun & Bradstreet on the 60th day of
(h) If Customer reactivates an account that was previously deactivated due to
non-payment, a $20.00 reactivation fee will be charged to Customer.
Limitations on Use of Service and Service Software.
(a) As used herein, "Software" refers to any software incorporated
into the Service. Customer will not, and will not permit, assist, or allow
others to, reverse engineer, decompile, disassemble, re-engineer, or otherwise
discover, recreate, or attempt to discover or recreate the Software or its
source code. Customer will not modify or attempt to modify the Software or
sublicense or charge others to use or access the Software or the Service.
Customer will not use the Software or the Service in any way not expressly
authorized by this Agreement.
(b) Customer acknowledges that the Services is not intended for permanent storage
and agrees not to use the Service for archiving or back-up purposes. Customer
will not store "mission critical" data on the Service, including
without limitation data pertaining to power generation, military or national
security, or any function to sustain or rescue the health or well-being of any
(c) From time to time, ZapSurvey may add new features to the Service that are
described as "beta" ("Beta Features"). Customer
acknowledges that Beta Features may be untested, non-functional, and/or partly
functional features of the Service. If Customer elects to use a Beta Feature,
it does so at its own risk. Notwithstanding the provisions of the first
sentence of Section 5(a), ZapSurvey does not warrant that the Beta Features
will be provided with due care. Customer will back-up all data it adds to the
Beta Features and will not rely upon the functionality of the Beta Features for
any purpose whatsoever. Except as specifically provided in this Section 3(c),
the Beta Features will be considered part of the Service and all provisions of
this Agreement relating to the Service will apply to the Beta Features.
(d) Use of
Service to send unsolicited email (spam) - Customer may not use the Software
and/or Service in any manner to send unsolicited email (spam). Doing so may result in immediate termination
of Customer's account and Customer shall be responsible for all expenses
incurred to have ZapSurvey and / or the ISP (Internet Service Provider) hosting
ZapSurvey's servers removed from any and all email black lists (lists used to
identify and block senders of spam) to which ZapSurvey and/or the ISP were
added as a result of Customer's violation of this agreement.
Security, Privacy, and Access.
(a) ZapSurvey will exercise reasonable care to prevent any unauthorized person
or entity from gaining access to Customer Data. Each party will promptly notify
the other of any unauthorized access to or use of Customer Data or passwords.
The parties will use reasonable efforts to take remedial measures to address any
such unauthorized access. ZapSurvey will not be liable for any damages incurred
by Customer arising out of or related to use of the Service, including without
limitation in connection with any unauthorized access to or disclosure of
Customer Data, resulting from the actions of Customer, any third party, or from
the failure of electronic or other security measures.
(b) ZapSurvey has no obligation to monitor the Service. ZapSurvey has the right
to monitor the Service and to disclose any information arising out of it,
including without limitation Customer Data, as necessary to satisfy any law,
regulation, or demand of government or of internal auditors or to protect
ZapSurvey or its customers. ZapSurvey may remove or refuse to post any
materials that it finds, at its sole discretion, to be offensive, undesirable,
in violation of this Agreement, or otherwise unacceptable. However, ZapSurvey
has no obligation to remove any such materials.
(c) Customer will not use the Service to transmit or store any data that may be
considered obscene or pornographic, that contains defamatory material, or that
violates federal, state, or local law.
(d) Customer will not disclose any account passwords to any third party not
authorized to use the Service.
(e) Customer grants ZapSurvey the right to display Customer's company or entity
name and logo on its customer list, which is used for ZapSurvey's marketing
purposes (brochures, web site, etc.) Customer's authorized representative may
request removal from this list at any time by written request.
Limited Warranty; Limitation of Liability.
(a) ZapSurvey warrants that the Service will be provided with due care. EXCEPT
FOR THE FOREGOING, ZAPSURVEY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE. Furthermore,
UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, WILL ZAPSURVEY
BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS,
OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY
TO USE THE SERVICE. In no event will ZapSurvey's total liability for damages, losses,
or causes of action, whether in contract or tort, including without limitation
negligence, either jointly or severally, exceed the aggregate dollar amount
paid by Customer to ZapSurvey in the twelve (12) months prior to the claimed
injury or damage.
(b) ZapSurvey is not liable for the accuracy, truthfulness, or validity of any
data entered by Customer or provided through the Service. ZapSurvey is not
liable for the loss of any Customer Data.
(c) Customer's sole and exclusive remedy, if it is dissatisfied with the
Service or with any terms, conditions, rules, policies, guidelines, or
practices of ZapSurvey is to discontinue using the Service.
Customer will indemnify and hold harmless ZapSurvey and its affiliates,
employees, officers, directors, agents, licensors, successors and assigns from
all damages and liability, including without limitation reasonable attorneys'
fees, incurred as a result of:
(a) Customer's violation of its obligations under this Agreement,
(b) the negligent or willful acts of Customer, or
(c) the violation by Customer of ZapSurvey's or any third party's rights,
including without limitation privacy rights, other property rights, trade
secret, proprietary information, trademark, copyright, or patent rights, and
claims for libel, slander, or unfair trade practices in connection with the use
or operation of the Service. Customer's obligation to indemnify will survive
the expiration or termination of this Agreement by either party for any reason.
Termination and Cessation of Service.
(a) Either party may terminate this agreement at any time for any reason. The following
obligations will survive the termination of the Agreement for any reason: (i)
indemnification obligations set forth in Section 6 above; (ii) fee obligations
set forth in section 2 above that become due under this Agreement before
termination; and (iii) any other provision hereof where the context of such
provision indicates an intent that it will survive the term or termination of
(b) ZapSurvey may deny Customer access to all or part of the Service without
notice if ZapSurvey believes, in its sole discretion, that Customer may have
violated any of the terms of this Agreement.
Interruption of Service.
(a) ZAPSURVEY WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO
INTERRUPTION OF, OR DEFECTS IN TRANSMISSION OF, THE SERVICE, including without
limitation interruptions or defects due to inability to access the Internet or
any part thereof, equipment modifications, upgrades, relocations, or repairs.
No reduction of payments will be made in the case of temporary interruption of
or defects in transmission of the Service.
(b) ZapSurvey will not be liable for interruption of or delays in transmission
of the Service caused by acts of God, fire, water, riots, acts of Government,
acts or omissions of Internet backbone providers, or any other causes beyond
(a) This Agreement constitutes the entire Agreement between ZapSurvey and
Customer regarding the subject matter hereof and expressly supersedes any prior
or contemporaneous written or oral agreements between the parties regarding the
subject matter hereof, including without limitation any offer, purchase order,
or other similar instrument in writing. This Agreement may not be amended,
altered, or changed except by a written agreement signed by the duly authorized
representatives of both parties.
(b) In the event that any provision of this Agreement is held to be
unenforceable, such provision will be construed as nearly as possible to
reflect it original intent and the remainder of this Agreement will remain in
full force and effect.
(c) Customer's rights in this Agreement are personal and are not assignable.
ZapSurvey may assign its rights and obligations under this Agreement to third
(d) This Agreement is to be construed in accordance with and governed by the
internal laws of the State of California (as permitted by Section 1646.5 of the
California Civil Code or any similar successor provision) without giving effect
to any choice of law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of California to the
rights and duties of the parties. The parties agree that any claim, controversy,
or dispute arising out of or relating to this Agreement will be settled by
final and binding arbitration to be conducted in Santa Clara County, California
in accordance with the commercial arbitration rules of the American Arbitration
Association. The decision of the arbitrator(s) will be binding; provided that
ZapSurvey may bring an action in a court of law (i) involving allegations of
personal injury to a third party, or (ii) for injunctive or other equitable or
(e) The remedies provided in this Agreement and at law or in equity are
cumulative and not exclusive. The failure by either party to exercise any right
or remedy under this Agreement or otherwise available at law or in equity will
not be deemed a waiver of any subsequent right or remedy.
(f) No person or entity who is not a party to this Agreement will derive any
rights whatsoever hereunder as a third party beneficiary of this Agreement.
The parties acknowledge that they have read the terms and conditions of this
Agreement and hereby agree to be bound thereby. This Agreement will become
effective upon Customer's acceptance by electronic acknowledgment on the Web