Research Desk & Research Defender Agreement for Buyers

This Research Desk & Research Defender Agreement for Buyers (the “Agreement”) is between the client, customer or subscriber agreeing to or accepting this Agreement (the “Company”) and Rep Data, Inc. (“Rep Data”) (each of Company and Rep Data are a “Party,” and, collectively, are the “Parties”) and constitutes the entire understanding related to the Rep Data Services. Rep Data reserves the right, at any time and at Rep Data’s sole discretion, to update, revise, supplement, and otherwise modify this Agreement or the Rep Data Services, and to impose new or additional rules, policies, terms, or conditions on Company’s use of the Rep Data Services. Before Rep Data makes material changes to this Agreement, Rep Data will provide prior written notice, e.g. by electronic notice to Company via the Research Desk Platform or email. Any new features that augment or enhance the Rep Data Services, including the release of new APIs, tools, and resources, shall be subject to this Agreement. Continued use of the Rep Data Services after any such changes shall constitute Company’s consent to such changes; provided however, if the change has a material adverse impact on the Company and the Company does not agree to the change, it must notify Rep Data via email addressed to legal@repdata.com within 30 days after receiving notice of the change. If the Company notifies Rep Data as required, then the Company will remain governed by the terms in effect immediately prior to the change until the end of the then current calendar year. If the Company continues to utilize the Rep Data Services and/or Rep Data Technology, access the Research Desk Platform and/or purchase Sample in the Research Desk Platform during the following calendar year, the Company’s use of the Rep Data Services and its relationship with Rep Data will be renewed under the then-current terms and conditions for Buyers.

ARTICLE I
DEFINITIONS 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, which means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means these terms and conditions related to the Company’s access to and use of the Rep Data Services and the Code.

“API” means an application programming interface developed by Rep Data or its Affiliate(s).

“Annual Fee” means the Minimum Transaction Fee Annual specified on the Order Form, if any. This fee represents the minimum amount of Completes multiplied by the applicable Buyer Transaction Fee specified on the Order Form that must be purchased during each Term.

“Applicable Laws” means all applicable laws, statutes, enactment, regulations (including those related to data privacy, information security, international communications, and the transmission of data, including the General Data Protection Regulation (GDPR) 2016/679, and each EU member state’s implementation thereof such as the UK Data Protection Act of 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and it successor, California Consumer Privacy Act (CCPA) any other ordinances, rules, codes and orders of governmental authorities having jurisdiction over the Company or Rep Data, as well as relevant industry standards such as ESOMAR and the Insights Association.

“Buyer” means the business entity accepting and entering into this Agreement for the purpose of acquiring Sample for Buyer Opportunities and/or utilizing the Rep Data Services. For certain Buyers, the Buyer may also be a Supplier.

“Buyer Fees” means the transaction fees, subscription fees, license fees, commissions, processing charges, and any other fees and billing terms specified on the Order Form.

“Buyer Opportunity(ies)” means an engagement, campaign, or other project defined by a Buyer, such as Sample for a survey, a recruiting effort, or some other cost-per-action effort, that is sourced by one or more specific Supplier(s) or the Research Desk Platform.

“Buyer Opportunity Data” means any data entered or provided by Respondents once they exit or are otherwise redirected from the Research Desk Platform to a third party service to conclude the Buyer Opportunity, which is never stored on the Research Desk Platform or in the Public Cloud.

“Complete(s)(d)” means a survey respondent transaction executed and concluded by a Respondent for a Buyer Opportunity as evidenced through the Research Desk Platform (specifically, the redirect link).

"Effective Date” means the date this Agreement becomes effective, which shall be no later than the earliest of (i) the effective date specified in this Agreement or an Order Form referencing this Agreement, (ii) the commencement of any Trial, or (iii) the date Company first utilizes the Rep Data Services.

“External Sample Activity” or “External Sample Completes” means any sample procurement transaction occurring directly between a Buyer and Supplier outside of Rep Data with only order fulfillment facilitated with activity tracking through the Research Desk Platform.

“Intellectual Property Rights” means any copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), and patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights (whether registered or not) as may exist now and hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, or jurisdiction.

“Internal Sample Activity” or “Internal Sample Completes” means any sample procurement transaction occurring directly between a Buyer and Rep Data with the order specification, placement, and fulfillment facilitated through the Research Desk Platform.

“Order Form(s)” means an online or offline document specifying the Rep Data Services to be purchased hereunder during the Subscription Term, including payment terms, applicable taxes, and payment method, that is executed by the Company and Rep Data, including any addenda and supplements thereto.

“Public Cloud” means the cloud-based Rep Data Services provided by Rep Data (and its third party sub-processors) on servers located in the United States.

“Reconciliation Window” means a period beginning on the date the Respondent interview was concluded and ending on the 25th calendar day of the month after the Respondent interview was concluded, based on US Central Time.

“Rep Data Services” means online access to the Research Desk Platform, the Research Defender Software, and/or Rep Data APIs, as well as any technical support and other Rep Data services provided by Rep Data during the Term of this Agreement. Rep Data Services do not include External Sample Activity, Sample or any Supplier Services.

“Rep Data Technology” means Rep Data’s and its Affiliates’ proprietary technology (including software, hardware, APIs, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) underlying the Research Desk Platform and the Research Defender Software.

“Research Defender Software” meanssoftware services designed to identify, detect, and mitigate fraudulent behavior in online surveys.

“Research Desk Platform” means a platform consisting of Suppliers and Buyers who have agreed to be participating members.

“Research Desk Platform Activity” or “Research Desk Platform Completes” means any Buyer Opportunity occurring on the Research Desk Platform.

“Research Desk Platform Data” means any data, metadata or other information that is learned, gathered, published, indexed, uploaded, created, bought or stored on the Research Desk Platform, including without limitation, the Respondent Data.

“Respondent(s)” means a natural individual who has been sent to the Research Desk Platform by a Supplier and consented to participate in Buyer Opportunities.

“Respondent Data” means all data supplied, indexed, or otherwise transmitted by the Company or provided by the Company’s Respondents to the Research Desk Platform (or through a Link URL with the Company’s Respondent using a Rep Data API), for answering questions and qualifying each Respondent to Complete a Buyer Opportunity, which information is then stored by Rep Data in the Public Cloud.

“Sample” means access to Respondents who are made available by a Supplier on the Research Desk Platform to answer questions and participate in Buyer Opportunities.

“Sample Cost” means the price the Company agrees to pay for a Buyer Opportunity, which is exclusive of any Buyer Fees.

“Subscription Term” means the period during which Buyer may access and use the Research Desk Platform.

“Supplier(s)” means any company with a prequalified user base of individuals willing to be Respondents on the Research Desk Platform.

“Supplier Services” means Sample sold by Suppliers and any other services Suppliers agree to make available in response to each Buyer Opportunity.

“Users” mean the Company’s employees, representatives, consultants, contractors or agents who have been granted access to use the Research Desk Platform on the Company’s behalf either via user identifications and passwords or via an API integration.

ARTICLE II
ROLES AND RESPONSIBILITIES

1. 2.1 Rep Data’s Role. Rep Data provides (i) Buyers and Suppliers with access to the Rep Data Services and/or (ii) Buyers with access to the Research Defender Software. Buyers and Suppliers transact directly with each other by accessing and using the Research Desk Platform. Rep Data does not accept any responsibility for the composition of Sample or for the legal and compliance obligations of Buyers or Suppliers related to Sample that is sold and procured by Suppliers and Buyers, respectively, when accessing and using the Research Desk Platform. If Buyers fail or Suppliers fail to honor their contractual and legal obligations, Rep Data may assert its own rights against the party in breach. Rep Data will also make good faith attempts to resolve any disputes between a Buyer and a Supplier, but Rep Data does not accept responsibility or liability for Buyers’ or Suppliers’ obligations or liability to one another.
2. 2.2 Buyers’ and Suppliers’ Obligations to Rep Data. As a Buyer, the Company must comply with all Applicable Laws and terms of this Agreement. Without limiting the generality of the foregoing, Suppliers must ensure that Respondents have received all required privacy notices and provided consent to processing and sharing of their personal data if and as required by Applicable Laws. Buyers must also ensure that Respondents have received all required privacy notices and provided consent to processing and sharing of their personal data once the survey begins off the Research Desk Platform if and as required by Applicable Laws.  All Buyers and Suppliers are responsible, at their expense, for its own connectivity to the Rep Data Services.
3. 2.3 Buyer’s Obligations to Suppliers. As described in Section 3 below, the Company must pay all fees to Rep Data when due and honor all obligations committed to for Buyer Opportunities. For External Sample Activity, Rep Data disclaims responsibility for evaluating and does not represent External Sample Supplier’s compliance with any Applicable Laws.
4. 2.4 Suppliers’ Obligations to Buyers. Suppliers must perform the obligations they accept with respect to particular Buyer Opportunities, and any terms specified by the Buyer.
5. 2.5 Code of Conduct. Rep Data and Buyers are independent entities, but the business practices and actions of Buyers and Suppliers may significantly impact or reflect upon Rep Data’s reputation and its brands. Accordingly, Rep Data requires all Suppliers and Buyers and their Users and Respondents to adhere to Rep Data’s Code of Conduct (“Code”) while conducting business under this Agreement or on the Research Desk Platform – via Rep Data APIs or otherwise either as Research Desk Platform Activity or External Sample Activity. The Company shall ensure that the Company’s Users understand and comply with the Code through education, training, and awareness. The Code is available at: https://www.repdata.com/legal/codeofconduct.
6. 2.6 Personal Data and Compliance with Data Privacy Laws. Suppliers own relationships and primary privacy compliance obligations with respect to their Respondents and to their Sample and Supplier Services. Suppliers ensure and warrant their Respondents receive accurate privacy notices and consents if required by Applicable Laws. Buyers shall ensure and warrant the Respondents receive accurate privacy notices and consent if required by Applicable Laws related to data collected off the Research Desk Platform. Rep Data will process data of Respondents as described in Rep Data’s Privacy Policy found at https://www.repdata.com/privacy. Buyers shall not re-identify any Respondents or contact Respondents outside Buyer Opportunities or Rep Data Services, except as required by Applicable Laws. Rep Data, Buyers, and Suppliers shall each respect the privacy of Respondents and comply with all Applicable Laws related to data privacy and data protection. Additional processing obligations related to data are found in the Code.

ARTICLE III
REP DATA SERVICES

1. 3.1 Availability of Rep Data Services. Rep Data will (i) allow the Company and the Company’s Users access to the Rep Data Services pursuant to this Agreement during the applicable Subscription Term(s) once the Company has purchased the Rep Data Services via an executed Order Form and/or Buyer Agreement; (ii) use commercially reasonable efforts to make the online Rep Data Services available 24 hours a day, 7 days a week in the Public Cloud, except for: (a) downtime for Scheduled Maintenance or emergency maintenance (as defined in Section 2.2 below), and (b) any unavailability caused by circumstances beyond Rep Data’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, hurricane, civil unrest, act of terror, strike or other labor problem, or Internet service provider failure or delay.
2. 3.2 Scheduled Maintenance and Emergency Maintenance. Rep Data will use commercially reasonable efforts to provide the Company with advance written notice (e.g., electronic notice to the Company’s Users either via the Research Desk Platform Interface or email) of any scheduled maintenance, including a maintenance window of time and the approximate length of the scheduled maintenance period (“Scheduled Maintenance”). If Rep Data deems it necessary to perform emergency maintenance on the Research Desk Platform (meaning any downtime that is not Scheduled Maintenance), Rep Data will use commercially reasonable efforts to provide the Company with notice as promptly as reasonably possible (e.g., notice to the Company’s Users either via the Research Desk Platform Interface or email).
3. 3.3 Security Measures. In order to protect the integrity and quality of Sample sold on the Research Desk Platform, Rep Data may, without liability, suspend or terminate any or all access to the Rep Data Services by revoking the Company’s Rep Data integration keys or restricting the Company’s User login(s): (i) following a possible or actual security breach or cyber-attack on Rep Data or its Public Cloud, (ii) in order to protect Rep Data’s network in the Public Cloud, (iii) if required by a governmental entity or law enforcement agency, (iv) if the Company or a User or Respondent is causing technical or other problems to the Public Cloud, (v) upon the termination or expiration of a Subscription Term, or (vi) as otherwise allowed under this Agreement.

ARTICLE IV
BECOMING A BUYER ON THE RESEARCH DESK PLATFORM 

1. 4.1 Access to Research Desk Platform as a Buyer. The Company will be granted access to the Research Desk Platform as a Buyer by executing an Order Form and/or Buyer Agreement, agreeing to pay the Buyer Fees (as described below), and satisfying Rep Data’s credit processes.
2. 4.2 Sample Cost and Buyer Fees for Research Desk Platform Activity. Using the Research Desk Platform for Internal Sample, Buyers establish and agree upon distinct pricing for each Buyer Opportunity, which amounts are then aggregated as the total Sample Cost. In addition to the Internal Sample cost the Company pays to Rep Data, the Company will be charged Buyer Fees by Rep Data for External Completes, in accordance with the Order Form. For each Buyer Opportunity, the associated Sample Cost and Buyer Fees are Confidential Information (as between the Company and Rep Data) and subject to the restrictions in Section 5.1 below.
3. 4.3 Counterparty Transactions. In the case of Research Desk Platform Internal Activity, the Research Desk Platform is used to source Sample from a Supplier on behalf of a Buyer. Rep Data is counterparty to this transaction, which means on a monthly basis, Rep Data invoices the Buyer directly for cost of Sample sourced via the Research Desk Platform, and the Supplier invoices Rep Data directly for cost of Sample acquired via the Research Desk Platform. Buyer and Suppliers do not send or receive invoices from one another.
4. 4.4 External Sample Activity. The Buyer may also use the Research Desk Platform to track External Sample Completes. Rep Data is not a direct party to External Sample Activity between Buyers and Suppliers. Rep Data disclaims all liability related to the Buyer’s and Supplier’s External Sample Activity.
5. 4.5 Invoicing. Rep Data will invoice Company monthly for (i) the Sample Cost of Internal Activity, (ii) the External Complete Buyer Fees, including reconciliation adjustments and any related charges (as described in Section 3.6 below) and/or (iii) any other Buyer Fees owed by the Company. All invoices will be submitted to the billing contact specified. Unless specified on an Order Form, payment terms are net 30.  The Company is responsible for notifying Rep Data via accounting@repdata.com when contact information needs to be updated. If applicable, Company will be charged the Annual Fee upon execution of Order Form. The Annual Fee will be applied to Buyer Fees as incurred on the Research Desk Platform. In the event the Buyer Fees for the year exceed the Annual Fee, the Company will be charged incremental Buyer Fees monthly. The Annual Fee does not include any fees for premium services. 
6. 4.6 Reconciliation Process. During a Reconciliation Window, Buyers have the right to adjust the reconciliation status of transactions for both Research Desk Platform Internal Activity and External Sample Activity; provided however, such reconciliations shall be processed in accordance with this Agreement and the Code of Conduct. Rep Data reserves the right to reject reconciliations in its sole reasonable judgment. AFTER THE RECONCILIATION WINDOW, THE COMPANY SHALL PAY FOR ALL SAMPLE COST AND ASSOCIATED BUYER FEES THAT HAVE NOT BEEN RECONCILED.
7. 4.7 Payment Disputes. If the Company believes any invoice from Rep Data is incorrect, the Company must contact Rep Data in writing within 30 days of invoice date setting forth the nature and amount of the requested correction directed to accounting@repdata.com. Otherwise, invoices are final. Rep Data has the right to recover any amounts overpaid to the Company.

ARTICLE V
ACCESS TO AND USE OF REP DATA SERVICES 

1. 5.1 Use of Rep Data Services. Subject to the Company’s compliance with this Agreement, the Company may access and use the Rep Data Services solely for the Company’s own business purposes or for the Company’s own end clients during the applicable Subscription Term. Rep Data reserves the right to immediately terminate the Company’s access to the Rep Data Services if Rep Data becomes aware the Company is in breach of any obligations under this Section 4. By using the Rep Data Services, the Company represents that the Company is not owned or controlled by nor acting on behalf of, any person or entity (i) located or organized in Cuba, Sudan, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or region that is subject to comprehensive U.S. economic sanctions, (ii) identified on the Specially Designated Nationals and Consolidated Sanctions List administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, or (iii) with whom U.S. persons are otherwise prohibited from transacting.
2. 5.2 The Company’s Responsibilities. The Company will be responsible for (i) protecting the Company’s Buyer Opportunity Data, (ii) using commercially reasonable efforts to prevent unauthorized access to or use of the Rep Data Services and/or Rep Data Technology, and notifying Rep Data of any unauthorized access or use, (iii) ensuring that the Company, the Company’s Affiliates, and the Company’s Users are accessing and using the Rep Data Services and Rep Data Technology only in accordance with this Agreement, (iv) ensuring compliance with Applicable Laws related to concluding Buyer Opportunities off the Research Desk Platform, and (v) ensuring the security of links from the Research Desk Platform to the survey hosting platforms used by the Company and any links back to the Research Desk Platform. The Company is responsible for all activity conducted under the Company’s User accounts and shall abide by all Applicable Laws in connection with the Company’s use of the Rep Data Services and Rep Data Technology, including those related to data privacy, international communications, COPPA and other age restrictions, the transmission of data, and data subject consents related to the Company’s Buyer Opportunities.
3. 5.3 Non-Circumvention. Neither the Company nor the Company’s Users shall make any attempt to circumvent the intent or purpose of the Research Desk Platform by avoiding the payment of, or otherwise reducing, all or any portion of the payments, fees and charges payable to Rep Data (whether by simulation, side agreement, or understating the consideration due for Research Desk Platform Completes and External Sample Completes) or otherwise using the Rep Data Services inconsistent with supporting market, opinion, and social research. For clarity, Buyers are prohibited from using Buyer Opportunity Data to circumvent use of the Research Desk Platform with Suppliers.
4. 5.4 Prohibited Uses. The Company’s use of the Rep Data Services shall not include service bureau use, reselling, outsourcing, renting, distributing, sublicensing, or otherwise commercially exploiting or making available to any third party the Rep Data Services or Rep Data Technology. The Company shall not and shall not permit any User, Affiliate or third party to: (i) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Rep Data Services or Rep Data Technology or any part thereof or otherwise attempt to discover any source code or modify the Rep Data Services or Rep Data Technology in any manner or form, (ii) “frame” or “mirror” the Research Desk Platform or Rep Data Technology on any other server or wireless or Internet-based device, (iii) access, penetrate, probe or scan the Rep Data Services or Rep Data Technology for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes, (iv) identify the Respondents or otherwise publish material on the Research Desk Platform that is intended to identify or otherwise collect personally identifiable information (“PII”) about or from the Respondents; (v) permit access to, or make the Rep Data Services and/or Rep Data Technology available to anyone other than as authorized by this Agreement, (vi) sell, resell, license, sublicense, distribute, make available, rent or lease the Rep Data Technology and/or Rep Data Services in any manner whatsoever, (vii) use the Rep Data Services to conclude fraudulent or otherwise illegal Buyer Opportunities; (viii) use the Rep Data Services for the purpose of building a similar or competitive product or service or (ix) access the Rep Data Services and/or Rep Data Technology to train an artificial intelligence or machine learning algorithm. The Company shall not and shall not permit any User, Affiliate or third party to use the Rep Data Services, Research Desk Platform Data, Respondent Data or Rep Data Technology: (a) in violation of, or which would cause another person to be in violation of Applicable Laws, including without limitation, COPPA, CalOPPA, and the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury; (b) to publish, post, upload, send, store or otherwise transmit material that is unlawful, harassing, libelous, defamatory, threatening or otherwise in violation of any third party rights of privacy or other intellectual property rights; (c) to publish, post, upload, or otherwise transmit material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs that are intended to interfere with or otherwise disrupt the integrity or performance of the Research Desk Platform or Research Desk Platform Data contained therein; or (d) in an attempt to gain unauthorized access to the Research Desk Platform or its related systems or networks.

ARTICLE VI
CONFIDENTIALITY 

1. 6.1 Confidentiality and Non-Disclosure. During the Term of this Agreement, each Party may be furnishing certain information (each a “Disclosing Party”) to the other Party (the “Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Specifically, the Company’s Confidential Information includes Buyer Opportunity Data. Rep Data’s Confidential Information includes the Rep Data Services and the Rep Data Technology. The Confidential Information of the Parties includes this Agreement and all Order Forms (including all Buyer Fees), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Disclosing Party. As between the Company and Rep Data, the Parties agree to hold Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. Confidential Information does not include any information that: (a) is, or later rightfully becomes, available to the public, (b) was in the Recipient’s rightful possession prior to receipt of the information from the Disclosing Party, (c) is later disclosed to the Recipient by a third party who has no obligation of confidentiality, (d) is independently developed by the Recipient without the use or benefit of the Confidential Information, or (e) is made available by the Company on the Research Desk Platform. This Agreement does not prohibit the disclosure of Confidential Information to the extent required by Applicable Law, regulation or court order. Each Party agrees to use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (at all times exercising at least a commercially reasonable degree of care) and not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement. Either Party may disclose Confidential Information on a need to know basis to its Affiliates, advisors, Users and service providers who have agreed to keep such Confidential information confidential as required by this Section 5.1.
2. 6.2 Publicity. The Company grants Rep Data the right to use the Company’s name and logo as a reference for marketing or promotional purposes on Rep Data’s website and in other public or private communications with Rep Data’s existing or potential customers. The Company may notify Rep Data via email at legal@repdata.com if the Company does not want Rep Data using the Company’s name or logo except as to provide the Rep Data Services.  Rep Data grants the Company the right to use Rep Data and Research Desk’s names and logos as a reference for marketing or promotional purposes on the Company’s website and in other public or private communications with the Company’s existing or potential customers, provided that Rep Data may, at any time, require that the Company cease such use of the Rep Data and Research Desk names and logos.  Notwithstanding the foregoing, the Company shall not use the Research Defender name or logo for any purposes without Rep Data’s written permission.

ARTICLE VII
PROPERTY RIGHTS AND RESPONSIBILITIES 

• 7.1 Ownership of Rep Data Technology. This Agreement contains a right to access and use the Rep Data Services during the Subscription Term, not a transfer of title to the Rep Data Technology. As between the Company and Rep Data, all Intellectual Property Rights in and to the Research Desk Platform Data, Research Desk Platform, Research Defender Software, and Rep Data Technology belong exclusively to Rep Data and its licensors. The Company is granted no licenses of any kind to any Intellectual Property Rights of Rep Data. The Company shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Research Desk Platform, unless otherwise agreed by Rep Data in writing. Rep Data reserves the right to make changes and updates to the functionality or performance of the Rep Data Services from time to time at its sole discretion. To the extent the Company or the Company’s Users provide any suggestions, comments or other feedback related to the Rep Data Services or the Rep Data Technology (collectively, “Feedback”), the Company grants Rep Data a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to use such Feedback or subject matter thereof in any way and without limitation.
• 7.2 The Company’s Rights and Responsibilities. As between the Company and Rep Data, all Intellectual Property Rights in and to the Company’s Buyer Opportunity Data is owned by the Company. The Company, not Rep Data, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any data submitted to or entered by the Company and the Company’s Users on the Research Desk Platform. During the Term of this Agreement, Buyers have the right to view, access, or download the Respondent Data related to a Buyer Opportunity for one year following each Respondent’s last interaction on the Research Desk Platform specific to that Buyer Opportunity.
• 7.3 Rep Data APIs. The Company’s use of the Rep Data Services may involve the use of one or more APIs between the Rep Data Technology and the Company’s third-party systems and software products. The Company recognizes that Rep Data holds all rights, title, and interest over the Rep Data APIs, as well as any Intellectual Property Rights.

ARTICLE VIII
WARRANTIES AND DISCLAIMER 

1. 8.1 Warranties. The Company represent and warrant that (i) the Company has validly entered into this Agreement and has the legal power to do so, (ii) the Company and the Company’s Users, in accessing and using the Rep Data Services and processing personal data, do so only in strict compliance with Applicable Laws and any terms of use that have been published by Rep Data generally relating to the Rep Data Services, as amended from time to time, and (iii) the Company and the Company’s Users shall refrain from using or processing any data of Respondents except as expressly permitted in this Agreement and fully disclosed in the privacy statement that Rep Data provides to Respondents on the Research Desk Platform, as amended from time to time. Not more than once a year and at Rep Data’s own expense, Rep Data reserves the right to audit the Company’s compliance with the warranties in this Section 7.1, and the Company shall provide relevant documentation in order for Rep Data to conduct such audit.
2. 8.2 DISCLAIMER. THE REP DATA SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, REP DATA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND SYSTEM INTEGRATION OR COMPATIBILITY. WITHOUT LIMITING THE FOREGOING, REP DATA DOES NOT WARRANT OR REPRESENT THAT THE REP DATA SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED, OR ERROR-FREE. THE REP DATA SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. REP DATA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

ARTICLE IX
INDEMNIFICATION 

1. 9.1 Indemnification by The Company. The Company shall indemnify, defend and hold Rep Data, and its subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorneys’ fees and costs of defense) and defend Rep Data against any actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from or in connection with: (i) any claim alleging that the Company’s Buyer Opportunity Data or any data published on the Research Desk Platform by the Company or the Company’s Users infringes the rights of, or has caused harm to, a third party, or (ii) arising out of a breach of this Agreement by the Company or (iii) any actions or inactions of the Company.
2. 9.2 Indemnification by Rep Data. Subject to the Company’s lawful use of the Rep Data Services, Rep Data shall indemnify, defend and hold the Company and the its subsidiaries, Affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Rep Data Services directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party as of the Effective Date of this Agreement, except that Rep Data will not be obligated to indemnify the Company to the extent that an infringement or misappropriation claim is based upon use of the Rep Data Services in violation of this Agreement, the Code or Applicable Laws.
3. 9.3 Tax Indemnity.  The Company shall indemnity, defend and hold Rep Data, and its subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from and against the full amount of any Taxes attributable to the provision of the Rep Data Services under this Agreement or any Order Form, and any liabilities (including penalties, interest, and expenses) arising from such Taxes, within 30 days from any written demand by Rep Data.  For purposes of this Section 9.3, “Taxes” means sales tax, value added tax and similar point of sale taxes, levies, imposts, dues, duties, fines or other charges of whatsoever nature however imposed by any country, state, county, parish or any subdivision or authority thereof in any way connected with the provision of the Rep Data Services, this Agreement, any Order Form or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a Party’s net income, profits or property.
4. 9.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 8, the indemnified Party shall: (i) promptly give written notice of the claim to the indemnifying Party, (ii) allow the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability), and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense, of such claim and any appeal arising therefrom. The indemnification obligations under this Section 8 are expressly conditioned upon the indemnified Party’s compliance with this Section 8.3 except that failure to notify the Indemnifying Party of such claim shall not relieve that Party of its obligations under this Section 8 but such claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations in this Section 8 shall survive termination of this Agreement.

ARTICLE X
LIMITATION OF LIABILITY 

1. 10.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE REP DATA SERVICES OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, DATA BREACH, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE REP DATA SERVICES BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
2. 10.2 THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT LIMITED TO THE BUYER FEES PAID BY THE COMPANY FOR THE REP DATA SERVICES DURING THE 12 MONTHS IMMEDIATELY PROCEEDING THE DATE NOTICE OF THE CLAIM IS GIVEN. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THIS AGREEMENT OR APPLICABLE LAWS.
3. 10.3 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO (I) BUYER FEES OR SAMPLE COST DUE UNDER THIS AGREEMENT, (II) A BREACH OF ARTICLE IV, SECTION 5.4, ARTICLE VI OR SECTION 7.1 OF THIS AGREEMENT, (III) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER ARTICLE IX OR (IV) ANY LIABILITY THAT MAY NOT BE LAWFULLY LIMITED OR EXCLUDED.

ARTICLE XI
TERM AND TERMINATION 

1. 11.1 Subscription Term(s). Unless otherwise specified on an Order Form, this Agreement commences on the Effective Date. Except as otherwise specified on an Order Form, subscriptions will automatically renew for additional periods equal to the then-expiring Subscription Term. The Company may cancel the automatic renewal of a Subscription Term by providing written notice of non-renewal at least 30 days before the end of the relevant Subscription Term.   Rep Data may provide Company with access to the Rep Data Services as part of a free trial (“Trial”) prior to the effective date specified in an Order Form. To the extent Company participates in a Trial, the Effective Date of this Agreement shall be no later than the date such Trial commences.  Any Trial will end at the earlier of: (i) the Trial end date specified on the Order Form; (ii) the start date of any Order Form for the Rep Data Services on a paid basis; or (iii) termination of the Trial at any time by Rep Data in its sole discretion.  Rep Data makes no commitments whatsoever with respect to the features, functionality, service levels, support or availability made available as part of a Trial and reserves the right to change such features and functionality at any time without notice and in its sole discretion.
2. 11.2 Termination of Agreement. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or becomes subject to U.S. economic sanctions or other Applicable Laws that would make unlawful the performance of this Agreement by either Party. Rep Data may terminate this Agreement immediately if the Company is in breach of Article IV of this Agreement.
3. 11.3 Suspension for Nonpayment. Any breach of the Company’s payment obligations will be considered a material breach of this Agreement. Rep Data, in its sole discretion, may suspend the Company’s use of the Rep Data Services upon 10 days notice until all undisputed Buyer Fees and Sample Cost have been fully paid to Rep Data.
4. 11.4 Effects of Termination. Upon termination of this Agreement, the Company’s right to access or use the Rep Data Services immediately ceases, and Rep Data shall have no obligation to store, maintain, forward, or otherwise restore any data other than whatever data was previously downloaded by the Company. The termination of this Agreement for any reason shall not affect: (i) obligations of the Parties to account for and pay to one another amounts owed under this Agreement for activity that occurred on the Research Desk Platform (whether before or after the notice of termination), or (ii) any other obligation or liability which either the Company or Rep Data has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination.

ARTICLE XII
GENERAL PROVISIONS 

• 12.1 Notice. Except as otherwise specified in this Agreement, all notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given to a Party when delivered personally to such Party or sent to such Party by reputable express courier service (charges prepaid), or mailed to such Party by certified or registered mail, return receipt requested and postage prepaid, to such Party’s address on the Order Form or any other address that such Party has identified as the address for notices by written notice hereunder to the other Party at least 30 days prior to such other Party’s notice.
• 12.2 Governing Law; Dispute Resolution. This Agreement and any dispute arising out of or in connection with the subject matter of this Agreement will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the State of Louisiana, United States of America, without giving effect to conflicts of law principles thereof and excluding the U.N. Convention on the International Sale of Goods. The Parties agree that any action at law or in equity arising out of or relating to this Agreement or the Rep Data Services shall be filed only in the state or federal courts in and for Orleans Parish, State of Louisiana and the Parties hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.  The Parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided below, each Party agrees that before it seeks legal proceedings, mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portion of any contract between the Parties and which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. Except as provided below, any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS for mediation before legal proceedings, arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a Party providing JAMS a written request for mediation setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall have experience with technology disputes, but the mediator shall not have the authority to award punitive or exemplary damages. The Parties agree that they will participate in good faith and share equally in its costs. The mediation shall take place in New Orleans, Louisiana. The dispute resolution procedures in this Agreement shall not apply to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.
• 12.3 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Company and Rep Data.
• 12.4 Assignment. The Company may not assign its rights and obligations under this Agreement; provided, however, that the Company may assigns its rights and obligations under this Agreement in connection with a merger, acquisition or sale of a majority of its assets (in the even the Company assigns its rights and/or obligations  in connection with a merger, acquisition or sale of a majority of its assets, the Company will provide written notice to Rep Data (directed to legal@repdata.com)); provided further, however, the Company may not assign this Agreement and the rights and obligations hereunder to a competitor of Rep Data without Rep Data’s prior written approval. Rep Data may assign its rights and obligations under this Agreement.  This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
• 12.5 Expenses. Except as otherwise provided herein, all expenses incurred by each Party in performing its obligations hereunder shall be borne by the Party incurring the expense.
• 12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
• 12.7 Headings. The headings in this Agreement are for reference only and shall not limit or otherwise affect any of the meanings or interpretations of this Agreement.
• 12.8 Questions. Any questions regarding this Agreement should be directed to legal@repdata.com.
• 12.9 Electronic Signature Consent.  The Company’s execution of this Agreement or an Order Form referencing this Agreement (by electronic or hard signature) or the Company’s use of the Rep Data Services constitutes the Company’s acceptance of all of the terms and conditions set forth in this Agreement. The Company and Rep Data agree and acknowledge that electronic signatures shall have the same force and effect as original or hand-written signatures with respect to this Agreement (or any statement of work or Order Form referencing this Agreement) and all electronic records or transactions entered into between the Company and Rep Data with respect to the Rep Data Services. The Company affirms its intent to conduct transactions using electronic signatures and records. The Company may revoke approval of this electronic signature process at any time with prior written notice to Rep Data; however this may result in Rep Data’s suspension or termination of all transactions and/or access or use of the Rep Data Services absent the Company’s acknowledgment of agreement or consent by other valid legal means.
• 12.10 Attorneys’ Fees. In the event any action is brought by either Party to enforce against the other Party any provision of this Agreement or to declare a breach of this Agreement, the prevailing Party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, court costs and cost of collection, incurred by such prevailing Party.
• 12.11 Binding.  This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

Last Modified:  April 25th, 2024

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