These Terms and Conditions shall apply to the Services provided by Market Force Information LLC (“MFI”) to Client as specified in the Enrollment Form. In consideration of the promises and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. Unless otherwise defined in these Terms and Conditions, terms used in the Agreement will have the following definitions:
1.1 “Agreement” – means the Enrollment Form and these Terms and Conditions.
1.2 “Associate” – an employee of Client (or its affiliate) or employee of Client’s licensee, franchisee or authorized resellers.
1.3 “Client” – the entity specified on the Enrollment Form.
1.4 “Client Data” – data provided by Client to MFI and data compiled for Client by MFI in connection with the provision of the Services.
1.5 “Customer” – a customer of Client.
1.6 “Deliverable” – the intangible and tangible material, and electronic copies thereof, delivered to Client related to or as a result of the Services, which includes but is not limited to, the Shoppers & Auditors site form, reports, analyses and other documents, domain names, URLs and toll-free telephone numbers, but excludes Client Data.
1.7 “Effective Date” – the date specified in the Enrollment Form.
1.8 “Enrollment Form” – the form completed by Client and submitted to MFI either via an online offer or via other electronic means and which sets forth the Services to be provided by MFI to Client.
1.9 “Extraordinary Site” – a Site that is inherently more difficult for Shoppers to perform a Site Visit, and which shall include, but are not limited to Sites located on islands, airports, resort locations, stadiums and other venues where a paid ticket for entrance is required, restricted access sites (e.g., military bases), Sites with seasonal access restrictions, universities, company headquarters where a visitor must call ahead and/or go through security, and/or locations requiring a ferry ride.
1.10 “Fee” – an amount charged for Services performed as set forth in the Enrollment Form.
1.11 “Intellectual Property Right” – any right under patent, copyright, trade secret, trademark, or similar intellectual property protection laws throughout the world.
1.12 “Party” or “Parties” – MFI or Client, or both.
1.13 “Platform” – MFI’s proprietary on-line customer experience reporting platform.
1.14 “Service” – a service to be performed under the Agreement pursuant to an Enrollment Form, which may also be referred to in MFI documentation as the Program.
1.15 “Site” - a Client location to be serviced by MFI.
1.16 “Site File” –a list of the Sites to be shopped or serviced, delivered to MFI by Client as an electronic spreadsheet in the format specified by MFI containing the necessary data for MFI to perform the Program including a unique store identification number, street address, city, state, postcode, telephone number, email address (if available) and appropriate fields as necessary to distinguish each Site.
1.7 “Site Form” – an on-line or off-line form or questionnaire developed by MFI for use by Shoppers to perform Services at one or more of Client’s Sites.
1.18 “Site Visit” - a visit to a Site by a Shopper to conduct one or more of the Services within the Program.
1.19 “Shoppers & Auditors” or “Shoppers” or “Auditors”– self-employed individuals recruited and contracted by MFI to complete Services, including individuals who provide audit, mystery shopping, checking, and other similar services.
1.20 “Subject Data” means Client data transmitted to Client, its Associates, and other parties authorized by Client to receive data from MFI through “push reports” delivered from MFI’s Platform.
1.21 “Transmission” means a transmission of Subject Data initiated by MFI to be delivered to a recipient designated by Client, either by unencrypted email or another form of unsecure digital delivery.
2. Services. MFI shall provide the Services in accordance with the Enrollment Form. Each Enrollment Form shall be deemed to have incorporated these Terms and Conditions into the Agreement, as if expressly restated therein.
3. Term. The term of the Agreement will commence on the Effective Date and continue until terminated by either Party on written notice to the other Party of no less than sixty (60) days or earlier in accordance with the terms of the Agreement.
4. Fees and Payment.
4.1 Service Fees. Client shall pay MFI the Fees specified in the Enrollment Form in addition to any additional amounts due and payable as set forth herein.
4.2 Payment of Fees. Billing for Market Force's KnowledgeForce® reporting platform, Customer Satisfaction Surveys, Employee Engagement Surveys, Case Management, Social Media Ratings & Reviews, Social Media Monitoring and Eyes:On™ Mobile App services will start at the earlier to occur of (a) the Services Launch Date or, (b) 60 days following the SOW Effective Date. Billing for other recurring services, such as Mystery Shopping, Auditing and Contact Center, will start at the Launch Date agreed during the Kick-Off meeting unless the launch date is scheduled or occurs later than 60 days following the Effective Date, whereupon the services will be billed at a 50% rate until the Launch Date. Billing for all services (other than professional services under Change Requests) is monthly in advance. Billing for Services charged on a per unit basis such as Contact Center, Mystery Shopping, and Audits shall be billed in advance based on forecasted or estimated number of sites, contacts, or other relevant Fee units. The Fees will be reconciled against actual units served on a quarterly or monthly basis, with overpayments credited to the next invoice and underpayments charged on the next invoice. Market Force shall provide documentation of the reconciliation at each quarterly or monthly period.
4.3 Taxes and Late Charges. Client is responsible for any and all sales and use taxes incurred as a result of the Agreement, excluding the income taxes of MFI. All undisputed fees not paid within 30 calendar days after the date of the invoice will bear interest from the due date until paid at the rate of 1.5% per month, or the maximum amount allowed by law, whichever is less. If Client fails to make any payment of undisputed amounts within 30 calendar days following date of invoice, then MFI may suspend, without penalty to MFI, the performance of any other obligations to Client, including but not limited to the performance of Services. If MFI is required to institute legal action to collect an amount due, MFI will be entitled to all reasonable collection costs it incurs in taking action including, without limitation, reasonable attorneys’ fees.
4.4 Extraordinary Site Fee. For Mystery Shopping only, MFI will promptly notify Client If MFI determines that a Site is an Extraordinary Site, and Client will promptly notify MFI of its election to (i) remove the Extraordinary Site from the Site File, (ii) request MFI use commercially reasonable efforts to provide Services to the Extraordinary Site but not utilize MFI production/scheduling resources for such Sites, or (iii) pay the Extraordinary Site Fee, equal to 3 times the standard Fee for other Sites.
4.5
Gas Fees. Due to the major impact retail gasoline prices have on the main direct cost of MFI performing its Services, MFI reserves the right to charge a surcharge to Client in order to assist Shoppers and Auditors with the high cost of gasoline that they use in performing Services. Each quarter MFI will review “This week in Petroleum” (
https://www.eia.gov/petroleum/weekly/) and identify the last week’s pricing of the previous month. If the last week’s price of such month is over $3.75 per gallon, then MFI shall add a surcharge of $0.50 per Site Visit, which surcharge shall be an additional line item on the month invoices, not an added rate increase to the price of the Services.
4.6 Modifications; Fee increase. From time to time, MFI will review the Services, Fees and the Terms and Conditions to determine whether any adjustments are required to reflect: i) any changes in the scope of any or all Services and ii) other factors, including but not limited to increases or decreases in, or profile of the Sites, changes to the Site Form, or other aspects of the Services, iii) any change of Fees, or iv) any change to the Terms and Conditions (each a “Modification”). MFI will provide thirty (30) days prior written notice of Modifications. Client shall have the right to terminate the Agreement within thirty (30) days following receipt of notice from MFI of such Modifications. MFI reserves the right to increase Fees once each 12 months during the Term, on no less than 90 days’ written notice to Client.
5.0 Confidentiality.
5.1 MFI and Client acknowledge that certain non-public information ("Information") relating to the business and technology of the disclosing Party (“Owner”) will be disclosed to the receiving Party (“Receiver”). As a condition to receiving the Information which an Owner or any of its employees (if applicable), representatives or agents may furnish to the Receiver or to which a Receiver is afforded access, directly or indirectly, the Receiver shall hold and treat the Information in strictest confidence and shall not, without the prior written consent of the Owner, disclose the Information or any part thereof to any third party. Information shall not, without the prior written consent of the Owner, be disclosed to any person or entity other than employees, representatives, or agents of the Receiver who need to know the Information and, in those instances, only to the extent justifiable by that need. MFI initiating or executing a Transmission shall not be a breach of any confidentiality provisions under the Agreement.
5.2 As used in the Agreement, “Information” includes but is not limited to all written, visual, electronic, or oral information concerning an Owner’s business products (or those of its vendors), services and practices, pricing methods, marketing strategies, customer relations, future plans, research and development activities, vendors, computer hardware and software, drawings, trade secrets, processes, operating procedures, training manuals, lists of customers, clients, prospects or other business contracts or any other information furnished to the Receiver by the Owner, that is, received, made available to or observed by the recipient, irrespective of the form of communication, and whether the information is furnished before, on or after the date hereof, and all analyses, compilations, forecasts, data, studies, notes, translations, memoranda, or other documents or materials prepared by the recipient (or its representative) containing or based on, or generated or derived from, in whole or in part from such furnished information. The term “Information” does not include information that is or becomes public knowledge through no act or omission of the Receiver, Information that the Receiver can show it developed independently without use of or reference to the Information of Owner, Information communicated to a third party free from any obligation of confidentiality and Information required by law to be disclosed by the Receiver.
5.3 Upon the request of the Owner, the Receiver shall promptly return or certify to the destruction of all written material containing or reflecting any Information (including all copies, extracts, or other reproductions), provided that the Receiver will not have an obligation to return or destroy Information stored in electronic backup systems, provided that such systems are not used to access the Owner’s Information and the provisions of this Section 5 will continue to apply to such Information stored in electronic backup systems.
5.4 Owner provides all Information without warranty or liability to the Receiver for any use of the Information.
5.5 Because money damages may not be a sufficient remedy for any breach of the foregoing covenants and agreements, each Party agrees and acknowledges that the Owner may be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach in addition to all monetary remedies that may be available at law or in equity. All requirements for any bond are waived.
5.6 The obligations set out in this Section 5 shall survive for 3 years after the termination or expiration of the Agreement. The provisions of this Section 5 shall supersede all other confidentiality or non-disclosure agreements that have been executed between the Parties pertaining to the business relationship established under the Agreement.
6.0 Ownership, Rights and Transmission of Subject Data.
6.1 Service and Access to Platform. Except as expressly provided in an Enrollment Form and below, Client shall not (i) provide or allow access to the Platform to any Client contractor, subcontractor, agent or other third party (other than an Associate), (ii) resell, rent, lease, loan, sublicense, copy, reproduce, upload, download, post, transmit or otherwise distribute the Services or access to the Platform or any information or portion thereof; (iii) modify, adapt or translate the Services or Platform; (iv) create derivative works based upon the Services or Platform or any portion thereof; (v) remove any proprietary or copyright legend from the Services or the Platform; or (vi) attempt to circumvent, disrupt or interrupt any access protection, authorization protocols to, or attempt to access or discover the underlying source code to, or run or perform any scans, tests (penetration or otherwise) or other security assessments against (except as authorized in writing by MFI), the Services or the Platform. Client may elect to provide access to the Platform to one or more of Client’s third-party contractors (other than a competitor of MFI); provided Client obtains an executed nondisclosure agreement from the third party recognizing the confidential nature of the Information on terms no less protective than Section 5 above. Client assumes full responsibility to MFI for any violation by such third party, whether occurring before or after termination hereof, of any obligation assumed by Client under the Agreement.
6.2 Intellectual Property and License Rights; Transmission of Subject Data.
6.2.1 MFI retains all copyrights, trademarks, service marks and other Intellectual Property Rights pertaining to the Services and to the Platform. MFI retains all right, title and interest (including all Intellectual Property Rights) in and to the Deliverables, and any documentation or data that accompanies or is included in the Deliverables, except Client Data.
6.2.2 Client will own and hold all right, title and interest in the Client Data and any information collected or compiled by MFI on Client’s behalf; provided that MFI may use and market any data complied, collected or analyzed for industry-wide statistical analyses so long as no mention of the source is made or implied. MFI owns all survey and Shopper questions Client shall not remove, and shall include on all copies, any copyright or proprietary notices included on any material provided by MFI. Subject to the other provisions of the Agreement, MFI hereby grants to Client a nonexclusive, non-transferable, perpetual license, without the right to sublicense, to use the Deliverables and information provided therein for Client’s internal use only.
6.2.3 Client may make a reasonable number of copies of each Deliverable or portion thereof and shall only make such copies available to those Associates with a need to use the Deliverables. Client may not otherwise distribute or disclose the Deliverables in whole or in part.
6.2.4 Client shall protect the Deliverables and any information provided therein using the same standard of care that applies to its own similar confidential information (but in no case less than reasonable care). Nothing in the Agreement or any course of dealing between the Parties will be deemed to grant to Client any right, title, interest, or license in or to any Deliverables (including any Intellectual Property Right therewith), whether by estoppel, implication, or otherwise.
6.3 Transmission of Subject Data. MFI currently stores Subject Data securely on the Platform that is made available to Client by authorized access. From time to time, Client may request that MFI transmits Subject Data via a Transmission. MFI agrees to make such Transmission, which shall be considered a service provided under the Agreement. Client acknowledges that Transmissions may not be secure, may be intercepted by unauthorized parties and consequently the Subject Data may be subject to a data breach.
7. Warranties, Disclaimers, and Limitation of Liability.
7.1 MFI Warranties. MFI warrants that it will perform the Services in a good and professional manner and in accordance with the terms set forth in the Agreement. The Services will conform in all material respects to the specifications for the Services as described in the relevant Enrollment Form. MFI’s sole liability, and Client’s exclusive remedy, under the Agreement for breach of the foregoing warranty shall be for MFI to re-perform the defective Services or refund the fees paid by Client to MFI for the Services giving rise to the breach. MFI shall use reasonable efforts to remedy such breach within 30 days of MFI’s receipt of Client’s written notification of the breach.
7.2 Client Warranties. Client warrants that it will comply with any law, statute, code, rule, or regulation, including any privacy law that is or may become applicable to Client, Client's business, or its use of the Services. Client also warrants that MFI is authorized to receive, process, and transmit data on behalf of Client.
7.3 Disclaimers. Except as provided in the Agreement, all Services and Deliverables provided hereunder are provided on an "as is" basis and Client's use of the Services is at its own risk. MFI makes no warranty that a Transmission will be secure from the initiation of the Transmission by MFI to the receipt thereof by the intended recipient designated by Client. Except for the warranties expressly set forth above, the Parties disclaim all other warranties of any kind, express or implied, by operation of law or otherwise, including without limitation, any implied warranties of fitness for a particular purpose, functionality, merchantability, non-infringement, and warranties arising from a course of dealing, usage, or trade practice.
7.4 Limitation of Liability. Except for indemnification obligations or a breach of confidentiality or an act of wilful misconduct, under no circumstances will: (a) either Party be liable to the other for any indirect, special, incidental, punitive, or consequential damages, damages for loss of profits, interruption of business or other damages of any kind relating to the Services or the Agreement, even if the Party has been advised of the possibility of such damages, and whether such action arises out of breach of contract, tort, negligence or otherwise, (b) MFI be liable for any actual, indirect, special, incidental, punitive, consequential or other damages of any kind under any circumstances relating to claims arising out MFI initiating or executing a Transmission, whether the action arises out of breach of contract, tort, negligence or otherwise, or (c) a Party’s liability for any claim exceed the amount of fees paid or payable by Client to MFI for the month and for the Service or Services under which the claim arose.
7.5 Private Investigators. The Parties recognize that MFI and the Shoppers are not private investigators. As such, MFI and the Shoppers shall not be required to make inquiries or collect, record or disseminate any information that would require MFI and/or any of the Shoppers to be licensed as private investigators under any federal, national, state or local law. Client may use Services as a preliminary monitoring or data collection procedure only. To the extent Client determines that further investigative or disciplinary action of an Associate, licensee or franchisee of Client is required (“Further Actions”), Client agrees that all Further Actions are out of the scope of the Agreement and that no Further Actions will reference or involve MFI. Client acknowledges that nothing under the Agreement requires that MFI or any of its employees, agents, or Shoppers to support or otherwise take any action or respond to any legal action taken or defended by Client that results from or arises out of any such Further Actions.
7.6 Liability for Shoppers & Auditors. Notwithstanding anything to the contrary in the Agreement, MFI shall not be liable for the acts or omissions, or failure to act even if there was a duty to do so, of the Shoppers & Auditors performing any Mystery Shopping or Auditing Services.
8. Indemnification.
8.1 Indemnification by MFI. MFI shall indemnify Client from any and all costs, losses, damages and liabilities (“Losses”), including, without limitation, reasonable attorneys’ fees, which may be incurred by Client on account of any claims or legal actions brought by any third party against Client alleging that the Services or a Deliverable, when used in accordance of the Agreement, infringe upon or violate any issued U.S. or Canadian patent, or any copyright, trademark or other Intellectual Property Rights (“Infringement”). If, with respect to a claim of Infringement, a final injunction is obtained against Client's use of any material element of the Services or a Deliverable, or in MFI’s opinion such use is likely to become enjoined, MFI, shall, at its own expense, and in addition to its obligations above in this subsection, either procure for Client the right to continue using the infringing Service elements or Deliverable, replace or modify the same so that they become non-infringing in a manner that retains in all material respects the features and functionality as provided under the Service or Deliverable, or refund to Client any pre-paid fees by Client for the Service or Deliverable and terminate the Service and the related Enrollment Form. Notwithstanding the foregoing, MFI will have no indemnity obligation to Client in respect to a claim of Infringement to the extent the claim results from (a) a modification to the Service or Deliverables not provided by MFI, (b) specifications or instructions provided by Client, (c) use, combination, or incorporation of the Service or Deliverable in any manner with third party software or hardware not supplied by (or contemplated for use with) the Service or Deliverable. The provisions of this Section state MFI’s entire liability and Client’s exclusive remedies for claims of Infringement.
8.2 Indemnification by Client. Client shall indemnify MFI from and against all Losses, including, without limitation, attorneys’ fees, which may be incurred by MFI as a result of any claims or legal actions brought by any Associate, licensee or franchisee of Client against MFI, which arise out of, or relate to Client’s use of the Services or out of Client’s request to receive Subject Data via a Transmission.
8.3 Indemnification Procedures. If any Party (“Indemnified Party”) makes an indemnification request to the other, the Indemnified Party shall permit the indemnifying Party to defend or settle at its own expense, any action or claim against the Indemnified Party for which the indemnifying Party is responsible under this Section 8; provided that no settlement or disposition may, without the consent of the Indemnified Party, impose any obligation on the Indemnified Party that is not wholly discharged or dischargeable by the indemnifying Party, and no conditions or obligations are imposed on the Indemnified Party other than the payment of monies that are readily measurable for purposes of determining the monetary indemnification or reimbursement obligations of the indemnifying Party. The Indemnified Party shall provide prompt notification to the indemnifying Party of any claim for which indemnifying Party is responsible, with all information that it has in its possession regarding the claim and facts underlying the claim, and the Indemnified Party shall cooperate with the indemnifying Party in every commercially reasonable way (at the indemnifying Party’s expense) to facilitate defense or settlement of any such claim.
9. Termination.
9.1 Termination. Either Party may terminate the Agreement by giving written notice of termination to the other if the other Party breaches any material term or condition of the Agreement and fails to cure such breach within 30 days (10 days in the case of a failure to pay Fees) (“Cure Period”) after receipt of such written notice, unless the breach is not susceptible to cure, in which case the termination shall be effective immediately. If the breach is susceptible to a cure and cannot reasonably be cured within the Cure Period (other than with respect to a failure to pay Fees), the breaching Party shall be given a reasonable period, but not to exceed 60 days, to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach. The termination of the Agreement under this Section 9.1 shall cause the termination of the Enrollment Form and the Services provided thereunder that were in effect immediately before the effective date of termination of the Agreement.
9.2 Results of Termination. In the event of termination of the Agreement under Section 9.1: (i) Client shall promptly pay all amounts due and owing to MFI as of the date of termination; and (ii) both parties will promptly return all materials and copies of Information provided to the other under the Agreement.
9.3 Survival. The provisions of Sections 1, 3, 4, 5, 6, 7, 8, 9.1, 9.2, 13, and 14 will survive the termination or expiration of the Agreement.
10. Notices. All notices, required or permitted under the Agreement shall be in writing, shall reference the Agreement and shall, unless otherwise specified, be directed to the President or CEO of the Parties at the principal office addresses as set out on the Enrollment Form (for Client) or if to MFI, to Market Force Information LLC, attention: Legal Department P.O. Box 270355 Louisville, CO 80023. They will be deemed delivered (i) when delivered in person, or (ii) when sent by acknowledged e-mail except that the communications referred to in Section 9 may not be sent by e-mail, or (iii) one day after having been sent by commercial overnight courier with written verification of receipt or, (iv) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (v) upon actual receipt thereof, whichever occurs first. An acknowledged e-mail communication shall be deemed to be a communication in writing.
11. Force Majeure. Neither Party will have any responsibility for any failure or delay in performing any obligation under the Agreement (other than payment of monies owed) if such delay results from causes beyond the reasonable control of the Party, including without limitation, acts, or omissions of government or military authority, acts of God, shortages of materials, telecommunications and power interruptions (including any systemic Internet failures and any interruptions in services of Internet service providers or providers of electrical power), transportation delays, earthquakes, fires, floods, labor disturbances, riots, or wars, and any delay on the part of a Party in providing required information or materials in a timely manner.
12. Use of Client Name and Logos. MFI may also Client’s name and logos in its marketing and advertising materials, including, but not limited to, on its website and in its promotional presentations.
13. Assignment. The Agreement and any Intellectual Property Rights granted hereunder may not be assigned, sold, leased, or otherwise transferred by either Party without the prior written consent of the other, except in the case of merger or acquisition of the Party or sale of substantially all its assets and business. Any assignment that violates the provision of this Section 13 shall be deemed void and of no effect. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and, to the extent permitted by the Agreement, their respective successors and assigns.
14. Miscellaneous.
14.1 If any claim or dispute of any kind or nature arises out of or relates to the Agreement (the “Dispute”), either Party may request in writing that the Parties meet within 10 business days of such request and seek to resolve the Dispute. If the meeting is requested, both MFI and Client will designate a senior executive with authority to resolve the Dispute. An executive from each Party will attend the meeting in person or telephonically and must act in good faith to resolve the Dispute for a period of no fewer than 30 calendar days from the meeting.
14.2 The Agreement shall be interpreted, construed, and governed by the laws of the State of Georgia, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Georgia, and the Parties hereby submit to in personam jurisdiction to the federal and state courts in Gwinnett County, Georgia. Both Parties hereby waive any right to trial by jury.
14.3 These Terms and Conditions, together with the Enrollment Form and associated schedules entered into pursuant to the Agreement, embody the entire agreement of the Parties on the subject matter hereof. Unless specifically stated in an Enrollment Form, in the event of a conflict between the terms of an Enrollment Form and these Terms and Conditions, the terms of these Terms and Conditions shall govern.
14.4 No amendment or modification of the Agreement will be valid or binding upon Client or MFI unless made in writing and signed by Client and MFI. The waiver by one Party of a breach of any provision of the Agreement by the other Party will not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other Party.
14.5 No provision in the Agreement Conditions, express or implied, is intended to or shall confer upon any person other than the Parties, their respective successors and assigns any third-party beneficiary rights.
14.6 Any reference in the Agreement to “writing” or similar expressions includes a reference to communications delivered through electronic mail.
