Introduction

These Master Service Terms and Conditions (“Terms” or “Agreement”) are a contract between you (the Customer) and us (“Locus Insights” or “we”). They describe the services provided when you sign up for an account with us, define aspects of our business relationship, and set forth the terms and conditions that apply to your access to and use of the websites, products, and services owned and operated by Locus Insights, Inc. Using our Subscription Services or signing up for a Free Trial indicates agreement with, and acceptance of, these Terms.

This is a legal contract, so if you are entering into this agreement on behalf of a company, government agency, organization, or other legal entity, you represent that you have the authority to bind such entity to these Terms. (In this case, “you” and “your” would then refer to the entity.)

We will not knowingly accept this Agreement from anyone under the age of sixteen (16) years, or who lacks the capacity to understand these Terms. Neither will we knowingly collect their Personal Data or Information, as defined below.

When you accept this Agreement, you are also agreeing to our Privacy Policy, which form part of these Terms. These Terms, and the Privacy Policy may be amended at any time, with or without notice or notification, so we recommend periodically reviewing them, as continued use of the Site and/or Services indicates acceptance of the latest version of each. We also suggest printing or saving a local copy of these Terms and the Privacy Policy.

1.      Definitions.

Customer Materials means any content, data, information, links, images, works of authorship, and other materials submitted by or for Customer to the Services or otherwise for use in connection with the Services, including without limitation Customer’s products and services, but excluding Locus Insights Materials.

Documentation means any user guide, help information and other documentation and information regarding the Services that is delivered by Locus Insights to Customer in electronic or other form.

Feedback means any and all suggestions, ideas, enhancement requests, recommendations or other information provided by Customer or any third party relating to any Locus Insights products or services.

Fees means the fees charged by Locus Insights for the Services as identified on each Order Form.  All Fees are nonrefundable unless otherwise noted hereunder.

Locus Insights Materials means the Argos desktop, web and mobile application, Services, Documentation, Feedback, end user data, and all other tangible or intangible materials (including hardware, software, source code, documentation, methodologies, know how, processes, techniques, ideas, concepts, technologies and data) provided or used by or on behalf of Locus Insights, including any materials used in providing the Services. 

Reports means all images, visualizations, pictures and other graphics generated and based on Customer’s use of the Services that are made available to Customer via an online portal in the Services, but excludes the templates of the Reports and the underlying raw data in the Reports, both of which shall be included in the definition of Locus Insights Materials.

Services means Locus Insights’ proprietary products and services that are set forth in a mutually agreed upon Order Form.

Subscription means paid access to the Services.

Subscription Period shall mean the period of time identified on each Order Form, for which Locus Insights has agreed to provide, and Customer has committed to pay for, the Services.

Trial Period means the period of time specified for a free trial in an Order Form.

2.      Locus Insights Services

2.1    Order Forms.  This Agreement will be implemented through one or more written or electronic orders entered into by the parties that reference this Agreement (Order Form). Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein.  Locus Insights may provide the Services directly, or indirectly using contractors or other third party vendors or service providers. 

2.2    Services.  Subject to all terms and conditions of this Agreement, Locus Insights will use commercially reasonable efforts to provide the Services described in an applicable Order Form.  Customer may not exceed any quantity, volume or other usage limits sets forth in an applicable Order Form; any excess usage shall be subject to Locus Insights’ then-current fees for the applicable services or portions thereof.   Locus Insights reserves the right to modify the Services (in whole or in part) at any time.

3.      Proprietary Rights.

3.1    Customer Materials.  Except for the limited rights and licenses expressly granted to Locus Insights hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Materials.   Customer hereby grants to Locus Insights a worldwide, non-exclusive, royalty-free license to use, access, reproduce, copy, modify, make derivative works of and distribute the Customer Materials for the purpose of (a) providing the Services to Customer (including by providing panelists with access to Customer Materials); and (b) to enforce this Agreement and exercise Locus Insights’ rights hereunder. 

3.2    Services.  Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Locus Insights (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services and all Locus Insights Materials, including all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Locus Insights in providing the Services, and all derivatives thereof.

3.3    Reports.  Subject to the terms and conditions of this Agreement, all Reports based specifically on Customer Materials shall be owned by Customer, provided that Customer shall only use such Reports for Customer’s internal business use and shall not share any such Reports with any other party without Locus Insights’ prior written consent. 

3.4    Feedback.  All Feedback shall be owned by Locus Insights and Customer hereby assigns all right, title and interest in and to such Feedback to Locus Insights.

3.5    General Knowledge.  Notwithstanding anything herein to the contrary, Customer agrees that Locus Insights may calculate aggregate statistics about the Customer Materials and use such statistics for its business purposes, provided that Locus Insights does not release such statistics in any manner that would be reasonably expected to identify Customer (Service Data).  Furthermore, Customer agrees that Locus Insights is free to (a) use (including for research, development, diagnostic and corrective purposes) and disclose aggregate measures of the Services, including all usage and performance thereof, (b) reuse all generalized knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services under this Agreement, provided that Locus Insights may not use such data in any manner that identifies Customer and (c) use aggregated and/or anonymized data derived from Customer’s use of the Services, which may be based on data collected by or on behalf of Customer for the improvement, maintenance, operation of Locus Insights products, services and business (collectively, (a) through (c), together with Service Data, General Knowledge).  For the avoidance of doubt, General Knowledge will be Locus Insights’, and not Customer’s, Confidential Information.

3.6    Restrictions.  Customer shall not directly or indirectly (a) use any of Locus Insights Confidential Information (as defined below) to create any service, software, documentation or data that is similar to, or competes, with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (g) introduce into the Services any software containing a virus, worm, “back door,” Trojan horse or similarly harmful code or (h) permit any third party to engage in any of the foregoing proscribed acts.

4.      Confidentiality.  

Each party agrees that the business, technical and financial information designated in writing as confidential, or disclosed in a manner that a reasonable person would understand the confidentiality of the information, shall be the confidential property of the disclosing party and its licensors (Confidential Information).  Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no fault on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.  The receiving party will use a reasonable degree of care, at minimum, to (i) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) except as authorized by the disclosing party in writing, limit access to Confidential Information of the disclosing party to those of its employees, consultants, contractors and subcontractors who need to know such information for the performance of obligations or exercise of the receiving party’s rights hereunder.  Neither party will disclose the terms of this Agreement or any Order Form to any third party without the other party’s prior written consent, provided that both parties will have the right to disclose a copy of this Agreement to its legal, professional and financial advisors and potential investors or acquirers, subject to confidentiality obligations consistent with those herein, in connection with a bona fide due diligence inquiry for a potential financing, acquisition or similar transactions. Upon the receiving party’s request after the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party.  If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give prior notice of such disclosure (to the extent legally permitted) to the disclosing party to permit the disclosing party to request protective orders or other confidential treatment therefor.

5.      Payments.

5.1    Fees.  Customer agrees to pay Locus Insights all Fees and expenses in the amounts specified in the applicable Order Form. 

5.2    Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). Customer is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on Locus Insights’ net income. If Locus Insights is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible, the amount shall be invoiced to and paid by Customer, unless Customer provides Locus Insights with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.3    Payment Terms.  Except as may be otherwise set forth in an Order Form, all fees (in USD) due hereunder shall be paid in full (without deduction, set-off or counterclaim) in advance for each Subscription Period immediately upon Customer’s receipt of invoice at Locus Insights's address (as provided on the Order Form(s)) or to an account specified by Locus Insights.  Late payments will be subject to the lower of one and one half percent (1.5%) per month penalty, or the maximum amount permitted by applicable law, and compounded monthly on all outstanding overdue balances.

5.4    No Refunds.  Except as expressly set forth in Section 6.3 (Limited Warranty and Disclaimers; Locus Insights) and Section 7.2 (Indemnification; Locus Insights), a termination of this Agreement by Customer for Locus Insights’ uncured material breach in accordance with Section 9 (Term and Termination) herein, or as otherwise provided in an Order Form as mutually agreed upon by both parties.

5.5  Disputes.  Customer must contact Locus Insights no later than sixty (60) days receipt of any invoice in which Customer believes there is an error or problem in order to receive an adjustment or credit.  Customer agrees that failure to submit a timely dispute in good faith shall result in the waiver of Customer’s right to dispute the invoiced amount.

6.      Limited Warranty and Disclaimers.

6.1    General.  Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

6.2    Customer.  Customer represents and warrants that (a) it owns the Customer Materials or otherwise has the right to grant the rights set forth in this Agreement, (b) it will comply with all applicable laws, rules and regulations, (c) it will only use the Services in accordance with this Agreement, (d) the publication or use of Customer Materials as contemplated hereunder does not violate the privacy rights, publicity rights, copyright rights, contract rights, intellectual property rights, or any other rights of any person, (e) the Customer Materials will be free from errors, viruses, or other harmful code or components and (f) its use of the Services complies with its privacy policies, third party contracts, and all applicable laws, rules and regulations.

6.3    Locus Insights.  Locus Insights warrants to Customer that the Services will be provided in a professional and workmanlike manner, substantially in accordance with the Documentation in all material respects.  Locus Insights’ sole obligation and Customer’s exclusive remedy in respect of any breach of this warranty is, at Locus Insight’s discretion, to (a) replace, repair or re-perform the nonconforming portion of the Services to bring it into conformance, or (b) if repair or replacement is impracticable, terminate this Agreement or applicable Order Form and provide Customer with a pro-rated refund of any pre-paid Fees for use of the Services not completed by the effective date of termination.

6.4    Disclaimers.  THE SERVICES ARE PROVIDED “AS IS.”  LOCUS INSIGHTS DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.  TO THE FULLEST EXTENT PERMITTED BY LAW, LOCUS INSIGHTS HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

7.      Indemnification.

7.1    Customer.  Customer shall indemnify, defend and hold Locus Insights and its officers, directors, employees an agents harmless from any claim, demand, suit or proceeding made or brought against Locus Insights by a third party (Claim) arising from (a) the gross negligence or willful misconduct of the Customer, (b) Customer Materials  (including but not limited to any third party claim that Customer Materials infringe or misappropriate such third party’s intellectual property rights or violates applicable law) and (c) Customer’s breach of its representation, warranties or obligations set forth herein. Customer will indemnify Locus Insights from any damages, losses, liabilities, expenses (including reasonable attorneys’ fees) finally awarded to an unaffiliated third party as a result of any such Claim, and for any amounts paid by Locus Insights under a settlement of any such Claim.

7.2    Locus Insights.   Locus Insights shall indemnity, defend and hold Customer and its officers, directors, employees an agents harmless from any Claim arising from a third party claim that the Services infringe (a) a valid U.S. patent issued as of the applicable Order Form Start Date, or (b) any copyright or trade secret of such third party.  Locus Insights will indemnify Customer from any damages, losses, liabilities, expenses (including reasonable attorneys’ fees) finally awarded to an unaffiliated third party as a result of any such Claim, and for any amounts paid by Locus Insights under a settlement of any such Claim. If any Service becomes or, in Locus Insights' opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Locus Insights may, at its option (i) obtain for Customer the right to continue using the Service or (ii) replace or modify the infringing portions of the Service so that it becomes non-infringing without substantially compromising its principal functions.  If (i) and (ii) are not reasonably available to Locus Insights, then it may (iii) terminate this Agreement upon written notice to Customer and refund to Customer any Fees for the Services that were pre-paid for the then current term, pro-rated for the remainder thereof.  Notwithstanding anything to the contrary set forth herein, Locus Insights will not be responsible for Claims, liability, issues or obligations resulting from or attributable to (a) use of the Services not strictly in accordance with this Agreement (including but not limited to usage in excess of the Services for which Customer has ordered pursuant to an applicable Order Form or use of the Services in an application or environment for which it was not designed or contemplated), (b) modifications, alterations, combinations or enhancements not created by or for Locus Insights, (c) any portion of the Services that implements Customer's requirements, (d) Customer’s products, services, negligence, acts or omissions, (e) scheduled maintenance, (f) content from publicly available sources, (g) Customer Materials, (h) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement and (i) any intellectual property right in which Customer or any of its affiliates has an interest.

7.3    Procedures.  Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim.  The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld).  The indemnifying party shall not be liable for any settlement made without its prior written consent.

7.4    Entire Liability.  This Section 7 states the entire liability of Locus Insights, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

8.      Limitation of Liability. 

In no event shall LOCUS INSIGHTS BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) LOSS OR INACCURACY of data, loss or interruption OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) damages, IN THE AGGREGATE, in excess of the amountS PAID TO IT HEREUNDER DURING THE PREVIOUS 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

9.      Term and Termination.

9.1      Term.  This Agreement shall continue in effect until ninety (90) days after the last to expire Order Form expires, unless or until terminated in accordance with this Agreement.  Except as otherwise provided in an Order Form, the Subscription Period shall automatically renew for subsequent terms equivalent to the initial Subscription Period for such Subscription at any time during then-current Subscription Period.

9.2      Termination; Suspension.  This Agreement may be terminated (a) by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, (b) by Locus Insights upon thirty (30) days written notice to Customer for any reason or no reason at all, or (c) as otherwise provided in an Order Form as mutually agreed upon by both parties.  Termination of this Agreement shall terminate all outstanding Order Forms.  Without limiting its rights and remedies hereunder, or at law or equity, Locus Insights may suspend Customer’s access to or use of the Services for any unpaid or overdue payments.

9.3      Effects of Termination.  Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except (a) all obligations accrued prior to the effective date of termination (including without limitation, all payments) shall survive,  (b) Customer shall cease using the Services (Locus Insights reserves the right to continue to charge Customer for continued use of Services); and (c) the provisions of Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6 (Limited Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive.

10.    General Provisions.

10.1    Entire Agreement.  This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom).  Any inconsistent or additional terms on any related Order Form, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.  In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control.  This Agreement supersedes any vendor forms, order forms, invoices, policies, or other terms and conditions provided by Customer. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument.  Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature.  No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is in English only, which language shall be controlling in all respects. 

10.2  Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  Unless waived by Locus Insights in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York having jurisdiction over Locus Insights' offices, and both parties consent to the jurisdiction of such courts with respect to any such action.  In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

10.2    Remedies.  Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity.  Each party agrees that, in the event of any breach or threatened breach of Section 3 (Proprietary Rights) or Section 4 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law.  Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

10.3    Notices.  All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice.  Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon confirmed receipt, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

10.4    Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.

10.5    Publicity.  Customer hereby grants Locus Insights a limited, non-exclusive license to use Customer’s name and standard logo to identify Customer as a customer of Locus Insights’ services, including on Locus Insights’ public-facing website and in marketing and promotional materials.  From time to time, upon written request by Locus Insights, Customer agrees it will provide reasonable, good faith cooperation and assistance in connection with such efforts (including, for example, acting as a reference, issuing press releases and writing testimonials and case studies). 

10.6    Assignment.  This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld.  However, without consent, Locus Insights may assign this Agreement to any successor to all or substantially all of its business or assets that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise).  This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of Locus Insights hereto.

10.7  Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.