Terms and Conditions
Terms & Conditions. These Terms and Conditions constitute an agreement (“Agreement”) between you (“you”, “your”, “user” or “Customer”) and PopSurvey, LLC (“PopSurvey”, “us”, “we” or “our”) for recurring billing services and any related products or services (“Services”). This Agreement governs both the Services and any assigned account (“Account”) used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization or registration of the Services, through the PopSurvey website (popsurvey.com) or through any of the PopSurvey subdomains (the PopSurvey website and subdomains are collectively referred to herein as, the “Site”); or (ii) through the use of your Account and password; or (iii) your use of the Site.
Ownership. All Materials (defined below), Services, Accounts and content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the Site or through the Services (“Content”), are provided by PopSurvey unless indicated otherwise. All intellectual property rights in the Materials, Content, Services and Accounts (including copyrights, trademarks, service marks, trade secrets and patents) are the property of PopSurvey. PopSurvey retains all copyrights in the individual pages, and their components, and collective works available at the Site.
The Materials, Content, Services and Accounts are copyrighted and are protected by federal and worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way without Grasshopper’s prior written permission.
Trademarks and copyrights including PopSurvey and the PopSurvey logo are the property of PopSurvey. All other names and trademarks are the property of their respective holders.
Single Copy License. You may download one copy of the materials (the “Materials”) and/or Content found on this Site for use with the Services and/or Accounts. This is a license, not a transfer of title, and is subject to the following restrictions: unless you receive prior written consent from us and unless you receive any required regulatory approvals, you may not: (a) modify the Materials, Content, Services or Accounts or use them for any commercial purpose or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts; (d) unless otherwise provided herein, transfer or resell the Materials, Content, Services or your Account to another person. You agree to prevent any unauthorized copying of the Materials, Content, Services and Accounts.
Term. The term of this Agreement begins on the date we activate Services for your Account. This Agreement will continue from month to month until terminated by either party pursuant to the terms hereof.
Order Acceptance Policy. Your submission of your order on the Site or receipt of an email confirmation signifies acceptance by PopSurvey of your order and the provision of your Account. PopSurvey may verify orders to prevent fraud. Should PopSurvey suspect the placement of a fraudulent order (even after you have received an email confirmation of acceptance of your order and the provision of your Account), PopSurvey may contact you by email or telephone regarding such suspected fraudulent order and, in sole discretion, interrupt, restrict or terminate your Account without notice to you by PopSurvey.
Use of Services and Account. You represent and warrant that you are at least 18 years of age or the applicable state age of majority and that you possess the legal right and ability to enter into this Agreement. You agree not to use the Materials, Content, Services and your Account for any unlawful or abusive purpose or in any way which interferes with our ability to provide Services to our customers, or damages our property.
Certain pages on the Site or the access to the Services and/or your Account may be accessed only by use of a password and log-in. You are solely responsible for all uses of the Site and/or the Services and/or your Account with your password. You should change your password once each month. If your Services or Accounts are fraudulently used, you agree to immediately notify us of such unauthorized use. We have the right to interrupt, restrict or terminate Services to your Account, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe.
Limitations. We will make every available effort to keep PopSurvey Services operational 24 hours a day/7 days a week. There will be periods of downtime for essential maintenance and upgrades. We will attempt to provide 12 hours of notice for scheduled maintenance or downtime, but some downtime maybe unscheduled and beyond our control.
PopSurvey will be sending transaction requests to your desired payment gateway. We make no guarantees as to the availability of your payment gateway provider and we are in no way responsible should your payment gateway provider have an outage.
PopSurvey is not a payment processor or a payment gateway service. We will not be processing any payments on your behalf. We are also not responsible for any payments due to you related to any transaction conducted through your payment processor.
At no time does PopSurvey store any credit card information on your behalf. We partner with Authorize.net, a fully audited PCI compliant storage house, who stores your customer’s payment information in a secure location. We are at no time liable for any credit card issues that arise as a result of Authorize.net being compromised.
Termination. You may terminate this Agreement at any time by ceasing all use of the Services or by notifying PopSurvey or doing so through your PopSurvey account. We may terminate this Agreement, at any time, without notice to you, if it believes, in its sole judgment, that you have breached or may breach any term or condition of this Agreement. You agree that termination of this Agreement will not relieve you of any obligation to pay any accrued charges. You shall be charged the full amount of the fee for the month in which the Services were terminated. All sections which by their nature should survive the expiration or termination of the Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement. PopSurvey will send you one final invoice after cancellation for any unpaid transaction fees. There is no pro-rated refund or discount provided when an account is cancelled.
Cooperation With Government Authorities. If necessary and in accordance with applicable law, PopSurvey will cooperate with local, state, federal, international and/or worldwide government authorities to protect this Site, Materials, Content, Services, Accounts, visitors, customers, PopSurvey, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of this Site, Materials, Content, Services and Accounts.
Links to Other Materials. The linked sites are not necessarily under the control of PopSurvey and PopSurvey is not responsible for the content of any linked site or any link contained in a non-affiliated linked site. PopSurvey reserves the right to terminate any link or linking program at any time. PopSurvey has selected the links for your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk. Any links to any portion of the Site shall be the responsibility of the linking party, and PopSurvey shall not be responsible for notification of any change in name or location of any information on the Site.
Modification to Prices or Billing Terms. PopSurvey reserves the right, at any time, to change its prices and billing methods for Materials, Content, Services and Accounts, effective immediately upon posting on the Site or by e-mail delivery to you.
Modification; Assignment. We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of PopSurvey), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at our Site (popsurvey.com). If you do not agree to a significant change, you may terminate this Agreement by giving us written notice within 15 days of receipt of our notice of such significant change. No hand-marked changes on this Agreement or any amendment by you will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original.
Assignment. We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of PopSurvey to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS POPSURVEY, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS’ FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON’S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF POPSURVEY OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Limitation of Liability. IN NO EVENT SHALL POPSURVEY, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF POPSURVEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POPSURVEY ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1) WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNT.
IN NO EVENT SHALL POPSURVEY, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, POPSURVEY SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND POPSURVEY AGREE THAT IN NO EVENT SHALL LIABILITY OF POPSURVEY TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY.
YOU AND POPSURVEY AGREE THAT THIS SECTION 16 OF THE AGREEMENT, “LIMITATION OF LIABILITY”, IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND POPSURVEY. YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, POPSURVEY WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
NO WARRANTIES. THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS ARE PROVIDED “AS IS.” WE MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by PopSurvey, your sole remedy for such reliance is against the third person making such representation or warranty.
Notices. Except as otherwise provided in this Agreement, notices and other communications under this Agreement shall be in writing and shall be delivered, mailed by first-class mail, postage pre-paid or sent by facsimile or electronic mail, addressed, (a) if to you, at the address as kept in our files or at such other address as you shall have furnished to us in writing, or (b) if to us at 197 1st Avenue, Needham, Massachusetts 02494, attention Customer Support Department. Your notice must specify your name and Account. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent by facsimile, when sent and receipt is telephonically confirmed or (iii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. Oral notices shall be deemed effective on the date reflected in our records.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding that body of law applicable to conflicts of law.
Jurisdiction and Venue. You and PopSurvey agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted only in a Massachusetts state or federal court sitting in Boston, Massachusetts, United States of America. You and PopSurvey each waive any objection you or PopSurvey may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submit to the jurisdiction of any such court in any such suit, action or proceeding.
General Information. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
You hereby consent to PopSurvey publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of promotional and marketing activities from time to time by PopSurvey.
This Agreement constitutes the entire agreement between PopSurvey and you with respect to your use of PopSurvey Site, Materials, Content, Services and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between PopSurvey and you with respect thereto.
The failure of PopSurvey to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.