This Market Tester™ Service Agreement, the Agreement, is entered into by and between the individual (in the case of personal use) or entity (if used on behalf of a business or organization) using The Market Tester™ Service, the ‘Service’, in each case ‘You’ and ‘Azure Corporation’. This Agreement governs your use of the Service and by using the Service you agree to be bound by this Agreement. In consideration of the foregoing, the parties agree as follows:
- You are solely responsible for your use of the Service, including but not limited to the accuracy of your information submitted, any entries and selections and all questions submitted by You in using the Service.
- You will comply with all applicable laws, rules and regulations in your use of the Service.
- Azure Corporation reserves the right, in its sole discretion, to change or cancel your use of the Service at any time for any reason without liability. Azure Corporation will refund your purchase of the Service if Azure Corporation cancels your use of the Service prior to delivering your Service Outputs Package (i.e. research results).
LICENSE GRANT AND INTELLECTUAL PROPERTY
- You authorize Azure Corporation and its affiliates or third-party Partners to present your Test material and survey questions to an assembled group of consumers, (i.e. the ‘Consumer Panel’). Azure Corporation and its affiliates or third-party Partners may reject material or remove a specific Survey question at any time for any or no reason. You will direct communications regarding your Test material and survey questions only to Azure Corporation.
- As between the parties the Market Test material submitted by You and the research responses and data submitted by the Consumer Panel are your Intellectual Property under this Agreement. The Market Tester™ design and platform and the research design and framework of the results and outputs is and remains the Intellectual Property of Azure Corporation under this Agreement. ‘Intellectual Property’ means any worldwide rights under patent law, trade secret law, trademark law or other intellectual property right secured by a party from time to time.
- Azure Corporation may use and disclose your (i) Personal Identifiable Information or information that would reasonably be expected to identify You, your Company or any of your Clients, (ii) Test material and survey questions and (iii) your Consumer Panel response data to our affiliates or third-party Partners to provide the Service or if and as required by court order, law or governmental or regulatory agency.
PRICING and PAYMENT
- You will be charged fees for your use of the Service according to your Service selections and the pricing posted at https://enablingideas.com/product/market-tester . The fees may be amended, modified or superseded from time to time by pricing made available and tabulated through the Service user interface. In the case of a conflict between the pricing posted at https://enablingideas.com/product/market-tester and the pricing made available and tabulated through the Service user interface, the pricing made available and tabulated through the Service user interface shall prevail.
- You will pay all charges incurred in connection with the Service at the time you make your submission request for the Service. Charges are solely based on the applicable Service pricing specified by Azure Corporation and Azure Corporation’s tabulations for the Service.
- Pricing and charged fees are exclusive of taxes. You will pay all applicable taxes associated with the Service in addition to the charged fees.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
- Each party represents and warrants that (i) it has full power and authority to enter into this Agreement and (ii) entering into or performing under this Agreement will not violate any Agreement it has with a third-party. You further represent and warrant that (i) you hold and hereby grant Azure Corporation, its affiliates and third-party Partners rights in use of the Material and Survey Questions to operate and perform the Service (ii) all information and authorizations provided by You are complete, correct and current and (iii) You are authorized to act on behalf of third-parties, if any, for which You utilize the Service in connection with this Agreement and will be liable for such third-parties acts and omissions in connection with the Service.
- Azure Corporation its affiliates and third-party Partners provides The Market Tester™, the Service is on an ‘as is’ and ‘as available’ basis and disclaims all warranties of any kind, either express or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, or title. Use of the Service is at your option and risk and none of Azure Corporation, its affiliates and third-party Partners make any guarantee in connection with the Service or Service Results.
INDEMNIFICATION AND LIMITATION OF LIABILITY
- You agree to indemnify and hold Azure Corporation, its affiliates, third-party Partners and its representatives, officers, directors, advisors, employees, shareholders, agents, independent contractors and licensors harmless from and against any and all claims, losses, expenses, demands or liabilities, including reasonable legal fees, made by any third-party due to or arising out of (i) the Material and Survey Questions you submit to The Market Tester™, (ii) the Service (iii) your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third-party. You further agree that you will cooperate fully in the defence of any such claims. Azure Corporation reserves the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle any such claim or matter without the prior written consent of Azure Corporation. You further agree to indemnify and hold harmless Azure Corporation its affiliates, third-party Partners and its representatives, officers, directors, advisors, employees, shareholders, agents, independent contractors and licensors from any claim arising from a third-party’s use of the Material or Survey Questions you submit to The Market Tester.
- To the fullest extent permitted by law regardless of the theory or Type of claim, (i) except for indemnification amounts payable to third-parties under section 13, no party or its affiliates may be held liable under this Agreement or arising out of or related to performance of this Agreement for any damages other than direct damages, even if the Party is aware or should know that such damages are possible and even if direct damages do not satisfy a remedy and (ii) except with respect to each Party’s indemnification obligations under section 13 and your payment obligations under this Agreement, no Party or its affiliates or third-party Partners may be held liable for damages under this Agreement or arising out of or related to performance of this Agreement for any given event or series of connected events in the aggregate of more than the amount payable to Azure Corporation by You under the Agreement.
OTHER MISCELLANEOUS TERMS
- Term: This Agreement will become effective on the date You make your submission and payment to The Market Tester™ for the Service and will remain in effect until the delivery of the Test results Outputs Package and the Service is completed. Any provisions of this Agreement that by their nature are intended to survive, will survive termination of this Agreement, including without limitation Intellectual Property, Indemnification, and Limitation of Liability.
- Governing Law: All claims arising out of or relating to this Agreement or the Service will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to the principles of conflicts of law.
- Amendments: Azure Corporation reserves the right to amend this Agreement at any time by posting the amended Terms on the website at https://enablingideas.com/the-market-tester-service-agreement/. The changes to the Agreement will not apply retroactively and shall be effective upon posting.
- Entire Agreement: This Agreement sets out all terms agreed between the parties and supersedes any all other or any previous agreements which You and Azure Corporation may have been bound in relation to The Market Tester™ and the Service. This Agreement will be binding on and be enforceable against the parties and their respective successors and assigns. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- Electronic Signature: You agree that your clicking on the ‘Approve and Proceed to Payment’ button shall constitute an electronic signature for the purposes of this Agreement and the electronic record thereof, shall be considered conclusive evidence of whether you accepted, declined, or otherwise acknowledged such matter, absent manifest error by Azure Corporation.
- Publicity: Azure Corporation my use your name and logos in general marketing materials related to The Market Tester™ and the Service without your prior written consent. Except as expressly permitted in the immediately preceding sentence, neither party may make any public statement regarding this Agreement without the other’s prior written approval.
- No Agency: No third-party Beneficiaries. This Agreement does not create any agency, partnership or joint venture between the parties. This Agreement does not confer any benefits on any third-party unless it expressly states that it does.
- Subcontracting: Either party may subcontract any of its obligations under this Agreement, without the written consent of the other. The subcontracting party will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.
- Severability: If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions of this Agreement shale remain in full force and effect.
- Force Majeure: Except for payment obligations, neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.