INSTANTLY, INC.

Welcome to Instantly Automated Sample. Please read and accept the Terms & Conditions below before proceeding.

INSTANTLY AUTOMATED SAMPLE™ TERMS & CONDITIONS

Thank you for your interest in the Instantly Automated Sample™ web-based automated panel management platform (“Instantly Automated Sample”) that is owned and operated by Instantly, Inc. (“Instantly”). The terms “Client,” “you,” “your,” and “yours” refer to the individual or entity mentioned on the Insertion Order to which these Instantly Automated Sample™ Terms & Conditions are attached (the “Insertion Order”).

IMPORTANT – PLEASE READ CAREFULLY: THESE INSTANTLY AUTOMATED SAMPLE™ TERMS & CONDITIONS (“AGREEMENT”) ARE A LEGALLY ENFORCEABLE AGREEMENT BETWEEN YOU AND INSTANTLY, PURSUANT TO WHICH INSTANTLY SHALL PERMIT YOU TO ACCESS AND USE INSTANTLY AUTOMATED SAMPLE. BY ACCESSING INSTANTLY AUTOMATED SAMPLE,” YOU ARE REPRESENTING THAT YOU CONSENT TO BE LEGALLY BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THIS AGREEMENT.

1. Definitions.

“Client Panelists” shall mean the panel of online respondents, owned and operated by Client on or before the date of the Insertion Order, through which Client has conducted research projects to gain consumer insights on behalf of marketers.

“Client Survey CPI” shall mean CPI to be paid by Client to Instantly for completion of a Client Survey by a Panelist.

“Client Surveys” shall mean surveys offered by Client using Instantly Automated Sample to gain insights about the Panelists.

“CPI” shall mean “cost per interview” or “cost per completed survey.”

“Panelists” shall mean collectively, the Client Panelists and Instantly Panelists.

“Term” shall mean the term specified on the Insertion Order, including any renewal terms.

“Service” shall mean the provision of Instantly Automated Sample™ that enables the management of Client Panelists, recruitment and management of Instantly Panelists and the delivery, completion, tracking, reporting, and payment for, Client Surveys offered to Panelists.
“Instantly Market Research Clients” mean any prospective or existing market research clients of Instantly.

“Instantly Panelists” means all internet users, with the exception of Client Panelists, who have registered to participate in survey projects directly through Instantly.

“Instantly Panelist Data” means any information about a Instantly Panelist that is gathered by Instantly, including, but not limited to: (i) first name, (ii) last name, (iii) email address, (iv) country, (v) city, (vi) state, (vii) zip/postal code, (viii) DOB (MM/DD/YYYY), and (ix) any other information that Instantly collects in provision of its Service.

2. Service.

Instantly agrees to make available the Service in a manner consistent with industry standards reasonably applicable to such Service. In the event of any conflict between the terms of the Insertion Order and those of this Agreement, the terms of the Insertion Order will prevail.

3. Ownership; License; Restrictions.

3.1 Ownership. Notwithstanding anything to the contrary, except for any limited license rights expressly granted to Client herein, Instantly has and will retain all rights, title and interest in and to (a) the Service, Instantly Automated Sample™ any confidential information, processes, technical information, software, procedures, copyrighted materials, concepts, know-how, databases, plans and Instantly Panelist Data (other than panelist responses to Client Survey questions) (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) that Instantly and its suppliers use to provide the Service (collectively the “Instantly Pre-Existing Technology and Intellectual Property”). Client acknowledges that any license rights to the Instantly Pre-Existing Technology and Intellectual Property are as set forth in this Agreement and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights to the Instantly Pre-Existing Technology and Intellectual Property are being conveyed to Client under this Agreement or otherwise. The Instantly name, the Instantly logo, and the product names associated with the Service are service marks or trademarks of Instantly or third parties, and no right or license is granted to use them unless expressly set forth in this Agreement or Insertion Order.

3.2 License. Instantly grants to Client a non-exclusive, non-sublicensable, non-transferable, limited, license to use the Instantly Pre-Existing Technology and Intellectual Property or Instantly Confidential Information only as necessary for Client to use the Service.

3.3 Restrictions. Client may use the Service only for its internal business purposes consistent with the terms and conditions of this Agreement and for no other purpose. Without limiting the foregoing, Client will not itself, or through any parent, subsidiary, affiliate, agent or other third party, entity or other business structure, authorize, enable or engage in any of the following: (i) sell, lease, license or sublicense the Service or use the Service in the operation of a service bureau, (ii) decompile, disassemble, re-program, reverse engineer or otherwise attempt to derive or modify the Service or the underlying software in whole or in part, (iii) write or develop any derivative software or any other software program based on the Service, or related information, (iv) provide, copy, transmit, disclose, divulge, or make available to, or permit use of the Service by any third party or entity without Instantly’s prior written consent, or (v) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices of Instantly.

4. Payment.

4.1 Fees. Client shall pay Instantly all costs agreed by the parties including, without limitation, Client Survey CPI and rewards as set forth in the Insertion Order and any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Instantly by any authority in connection with this Agreement, excluding taxes based upon Instantly’s net income, (collectively, the “Fees”). Client agrees and acknowledges that the initial CPI quoted for a survey could increase or decrease based on the actual results of the sample delivery; provided, that Client may set the upper limit for such an increase and, if CPI exceeds such upper limit, terminate the survey; provided further, however, that Client shall pay for the surveys conducted prior to any termination. Client shall be responsible for interest on all Fees overdue by more than thirty (30) days from the date on the invoice at a rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by applicable law.

4.2 Reporting. Instantly shall track through its technology and report to Client the number of Client Surveys completed by Panelists. If Instantly makes available an on-line reporting interface, (a) Instantly may make available reports required under this Section via that interface in lieu of sending the report to Client, (b) Client may use such interface solely for its own benefit, (c) Client shall require that all users of the reporting interface keep user ID and password information strictly confidential and not share such information with any unauthorized person, and (d) Client shall be solely responsible for any and all actions taken using Client’s accounts and passwords.

5. Term of Agreement.

5.1 Term. This Agreement is effective as of the Effective Date and shall terminate as set forth below. Each Insertion Order has the term specified therein.

5.2 Termination. This Agreement contains terms which apply to all Insertion Orders executed by the parties, and shall be in effect so long as any Insertion Order is in effect. This Agreement automatically terminates if there are no Insertion Orders in effect. Either party may terminate this Agreement (including all related Insertion Orders) if the other party: (a) fails to cure any material breach of this Agreement or an Insertion Order within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). In addition, with respect to specific Insertion Orders, either party may terminate such an Insertion Order if the other party fails to cure any material breach of that Insertion Order within thirty (30) days after written notice of such breach. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

5.3 Survival. Sections 3 (Ownership), 4 (Payment), 5 (Term of Agreement), 6 (Disclaimer of Warranties), 7 (Indemnification), 8 (Limitation of Remedies and Damages), 9 (Confidential Information) and 11 (General) shall survive any termination or expiration of this Agreement.

6. Disclaimer of Warranties.

EXCEPT AS STATED OTHERWISE IN THIS AGREEMENT, NEITHER INSTANTLY NOR ITS SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. NEITHER INSTANTLY NOR ITS SUPPLIERS REPRESENTS OR WARRANTS THAT (A) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE (WHETHER AS A RESULT OF TECHNICAL FAILURE, ACTS OR OMISSIONS OF THIRD PARTIES, OR OTHER CAUSES) OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (C) ANY INFORMATION PRESENTED BY THE SERVICE WILL BE ACCURATE, COMPLETE OR RELIABLE, (D) THE QUALITY OF ANY INFORMATION USED OR OBTAINED BY CLIENT OR ITS USERS THROUGH THE SERVICE WILL MEET CLIENT’S OR ITS USERS’ REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. INSTANTLY DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR ASSURANCE REGARDING USER-GENERATED CONTENT. THE SERVICE IS PROVIDED “AS IS”, AND NEITHER INSTANTLY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

7. Indemnification.

EACH PARTY (“INDEMNIFYING PARTY”) AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS, OTHER PARTY, ITS AFFILIATED COMPANIES, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS AND ASSIGNS (COLLECTIVELY, “INDEMNIFIED PARTIES”) FROM ALL CLAIMS, DAMAGES SUITS, AND/OR LIABILITIES, OR ANY LOSS WHATSOEVER, INCLUDING ATTORNEYS’ FEES AND EXPENSES WHICH ARE ATTRIBUTABLE TO ANY NEGLIGENCE OR WILLFUL MISCONDUCT OF INDEMNIFYING PARTY OR ITS PERSONNEL, SUPPLIERS OR AFFILIATES OR FAILURE TO COMPLY WITH ALL APPLICABLE LAWS, STATUTES, ORDINANCES, AND REGULATIONS BY INDEMNIFYING PARTY OR ITS PERSONNEL, SUPPLIERS OR AFFILIATES.

8. Limitation of Remedies and Damages.

8.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, INSTANTLY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CLIENT SHALL NOT EXCEED THE GREATER OF $10,000 OR THE AMOUNT ACTUALLY PAID (IF ANY) BY INSTANTLY TO CLIENT UNDER THE APPLICABLE INSERTION ORDER.

8.3 THIS SECTION 8 SHALL NOT APPLY TO EITHER PARTY WITH RESPECT TO (i) ITS INDEMNIFICATION OBLIGATIONS, IF ANY, (ii) ANY CLAIM ARISING FROM A BREACH OF ANY LICENSE GRANTED UNDER THIS AGREEMENT, OR (iii) TO A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS.

8.4 The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

9. Confidential Information.

Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any code, documentation or technical information provided by Instantly (or its agents), performance information relating to the Service, payment amounts, and the terms of this Agreement shall be deemed Confidential Information of Instantly without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

10. Co-Marketing.

Client agrees that Instantly may disclose Client as a receiver of the Service, and may use Client’s name and logo(s) in Instantly’s marketing and other materials (including Instantly’s website) in the same manner as Instantly uses the name and logo(s) of its other clients. Any co-marketing outside of that stated above, which is performed in the usual course of business, will require the prior written approval of Client, which may not be unreasonably withheld.

11. General.

11.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement as a whole in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 11.1 will be null and void.

11.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

11.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of law provisions thereof. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in Los Angeles, California, and both parties hereby submit to the personal jurisdiction of such courts. If Client is located outside the United States, the parties acknowledge that this Agreement shall be interpreted without regard to the United Nations Convention on the International Sale of Goods.

11.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

11.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.

11.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

11.7 Entire Agreement. This Agreement, along with the Insertion Orders, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

11.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

11.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

I accept the terms and conditions in this document.