Last updated: December 1, 2021
(a) “Acceptable Use Policy” means the policy for use of the Solution located at: https://www.rivaltech.com/legal/acceptableuse.
(b) “Agreement” means these Standard Terms together with each Order.
(c) “Default” means either party (i) becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors or (ii) materially breaches this Agreement and such material breach is incapable of cure or is not cured within thirty (30) days of non-breaching party providing notice of default.
(d) “Disbursement” means any expenditures made by Rival that are not Subscription Fees or Service Fees and will be billed to Subscriber as an additional charge. Rival will obtain the prior consent of Subscriber before incurring any Disbursement in an amount greater than one hundred dollars ($100).
(e) “External Sample Waiver” means the waiver located at https://www.rivaltech.com/legal/externalsample.
(f) “Initial Term” means the initial term specified in the initial Order, as applicable.
(g) “Insight Community” means: (i) any online community subscribed for by the Subscriber from a third party, which operates in connection with the Solution, accessed via a web browser, owned by Subscriber.
(h) “Kickoff Call Date” means the date of the first cross-organizational meeting between Rival and Subscriber in which the parties outline the project scope and assign roles and responsibilities.
(i) “Order” means any written Order (including, without limitation, the initial Order) between Rival and Subscriber, in connection with the Subscription or the Services, which is mutually agreed in writing by the parties in the form prescribed by Rival.
(j) “Participant” means a respondent, regardless whether the individual has an account within the Solution, who participates in any research, survey, study or any other means or form of questionnaire administered through the Solution.
(k) “Participant Data” means any data collected from a Participant and excludes aggregate, anonymized data which Rival may collect and use for its business purposes provided that such use does not reveal the identity of Subscriber or any Participant.
(l) “Proprietary Information” (i) for Rival, means the Solution and related documentation, and all current and future product and pricing information, business practices, maintenance procedures, services and support, method, strategies, plans and information identified or reasonably identifiable as confidential and proprietary, and (ii) for Subscriber, means any Participant Data and information identified or reasonably identifiable as confidential and proprietary, and (iii) excludes information which: (A) becomes publicly available through no act or failure of the receiving party, (B) was or is rightfully acquired prior to receipt from the disclosing party, (C) becomes independently available to the receiving party without breach of this Agreement as evidenced by relevant business records, or (D) the receiving party is lawfully required to disclose to any governmental agency or is otherwise required to disclose by law, provided however that before making such disclosure, the receiving party will give the disclosing party adequate opportunity to interpose an objection and/or take action to assure confidential handling of such information.
(m) “Rival” means Rival Technologies Inc.
(n) “Service(s)” means any professional services described in the Order.
(o) “Service Fees” means the Service Fees specified in an Order in connection with the Services. In the event that no Service Fees are specified in the relevant Order for Services which are rendered, the then current service fees of Rival applicable to its general customer base shall apply to the relevant Services.
(p) “Solution” means the technology platform and automated services set out in the Order and owned or licensed by Rival (e.g. the Rival platform, etc.), including all standard upgrades and updates thereto that Rival generally implements for all subscribers, but excludes any Services and custom product enhancements and offerings that are not part of a standard release and that Rival markets at an additional charge.
(q) “Subscriber” means the person or entity specified as such in the initial Order;
(r) “Subscription” means a time-based, non-exclusive, non-transferable right to access the Solution online in exchange for payment of the Subscription Fees and in accordance with this Agreement and the Order.
(s) “Subscription Fees” means the agreed upon Subscription fees in an Order.
(s) “Subscription Term” has the meaning ascribed to it in Section 13.
Subject to the terms and conditions of this Agreement, Rival hereby grants Subscriber a right to access and use the Solution as set forth in the Order for the Subscription Term. Except only for the limited right to use granted in the preceding sentence, Rival reserves title, ownership and all rights and interests, including intellectual property rights and trade secrets in the Solution. Subscriber will not directly or indirectly resell or grant access to the Solution and will not attempt to access, download, copy, decompile, revise, engineer, modify, or derive source code or other elements of the Solution, nor prepare translations or derivative works based upon, distribute, subscribe, rent, lease, sell or otherwise commercially exploit the Solution. Subject to the terms of this Agreement, Subscriber may allow its third party contractors to access the Solution solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Solution by any other entity is forbidden and a violation of this Agreement including use of the Solution by any of Subscriber’s corporate affiliates or subsidiaries.
(a) Fees. Subscriber will pay all Subscription Fees, Service Fees, Disbursements and any other fees (collectively, “Fees”) specified in the Order. Except as otherwise set out herein or in an Order (i) Fees are non-refundable and based upon Subscription and Services purchased and not actual usage and (ii) quantities purchased cannot be decreased during the Subscription Term without the mutual consent of the parties.
(b) Invoicing and Payment. Rival will invoice Subscriber in accordance with the Order. Invoiced charges are due net 30 days from the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to Rival and notifying Rival of any changes to such information. If any invoiced amount is not received by Rival by the due date, without limiting Rival’ rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by Subscriber is thirty (30) or more days overdue, Rival may, without limiting its other rights and remedies, suspend all Services to Subscriber and Subscriber’s access to the Solution until such amounts are paid in full.
(c) Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying and reimbursing Rival for all Taxes associated with the Fees, except taxes on Rival’ income. If Rival has the legal obligation to pay or collect Taxes for which Subscriber is responsible, Rival will invoice Subscriber and Subscriber will pay that amount unless Subscriber provides Rival with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Rival is solely responsible for taxes assessable against Rival based on its income, property and employees. If Subscriber believes it is obligated to withhold for taxes or charges in Subscriber’s jurisdiction, Subscriber shall comply and remit such taxes, provide Rival with evidence of withholding and gross up payments to ensure that Rival receives the full amounts invoiced to Subscriber; in that case, Rival shall work with Subscriber in good faith to help recoup withheld amounts and pass on any recouped amounts beyond amounts actually invoiced to Subscriber.
Fees under any Order are subject to periodic price adjustments, but not within one year of the Kickoff Call Date. Such price adjustments shall not occur more frequently than once every calendar year and shall not exceed 10% of the preceding year fees and shall take immediate effect following the provision of ninety (90) days prior written notice of the adjustment, except that any Services for which Rival has provided a custom quote which shall be completed at the rates in effect at the time Subscriber requested the Services up to the expiration date of the custom quote.
In addition to this Agreement, Subscriber agrees that its use of the Solution will also be governed by the Acceptable Use Policy. In cases where Subscriber uses the Solution to initiate first contact with the Participant for the purposes of this Agreement, Subscriber shall abide by the External Sample Waiver. The foregoing policies and agreements are subject to change by Rival, from time to time. Subscriber shall designate a primary support contact (“Designated Support Contact”) who will act as the conduit for all requests from Subscriber to Rival relating to matters of use of and troubleshooting with respect to the Solution. Before assuming responsibilities, the Designated Support Contact shall complete training in the use of the Solution as prescribed by Rival.
Subscriber is responsible for compliance with all data privacy, data protection and data security laws applicable to Subscriber. If and to the extent required by law, as determined by Subscriber, Subscriber shall obtain the prior consent of each Participant to the collection, use and disclosure of the Participant Data in compliance with all applicable laws in the jurisdiction of Subscriber and/or the Participants. Notwithstanding the foregoing, Rival disclaims any responsibility for the collection, use and/or disclosure of Participant Data by Subscriber and its respective directors, officers, employees, contractors, agents and those for whom in law they may be responsible. Rival will adhere to all applicable data protection legislation in its provisioning of the Services, including, without limitation the European Union’s General Data Protection Regulation (Regulation (EU) 2016/679 (“GDPR”). For clarity, Rival will not be responsible for compliance with any industry-specific requirements that are not expressly referenced in any such legislation. In the event that the Subscriber or any Participants are residents of the European Economic Area, the privacy notice in https://www.rivaltech.com/legal/privacy shall apply (the “GDPR Notice”).
Subscriber will not upload into the Solution or otherwise submit or make accessible to Rival any financial account identifiers (e.g. credit card numbers or bank account numbers), government issued identifiers (e.g. social insurance numbers, health card numbers) or other types of data that are subject to specific or elevated data protection requirements (‘Prohibited Data’), unless Rival has expressly agreed in the relevant Order that it can comply with such requirements. Should Subscriber contravene its obligations under this Section 7(b), then Subscriber shall indemnify and hold harmless Rival and its affiliates, subsidiaries, licensors, agents, directors and employees from and against any loss, damage and expenses incurred as a result thereof (including, without limitation, fines levied by competent data protection authorities and damages payable to data subjects). Furthermore, Should Subscriber contravene its obligations under this Section 7(b), then Rival shall have the right, at its sole discretion, to delete any Prohibited Data from the Solution after providing Subscriber with at least ten (10) days to export such Prohibited Data from the Solution.
The Solution and all related intellectual property rights are the exclusive property of Rival. All right, title and interest in and to the Solution, any modifications, improvements, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Solution remain exclusively with Rival, including any modifications or improvements made thereto throughout the Subscription Term at the suggestion of, or with input from, Subscriber. The Solution is valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Solution. All rights not granted to Subscriber in this Agreement are reserved to Rival. No ownership of the Solution passes to Subscriber. Rival may make changes to the Solution at any time without notice. Except as otherwise expressly provided, Rival grants no express or implied right under Rival patents, copyrights, trademarks, or other intellectual property rights.
Each party will maintain the confidentiality of, and will not disclose or use any Proprietary Information of the other, without the prior express written consent of the party to whom the Proprietary Information belongs (the “Owner”), except as permitted by this Agreement. Each party agrees that it: (a) will limit access to the Proprietary Information of the Owner only to those of its employees, consultants or agents who require access to the Proprietary Information; and (b) will ensure that those persons are bound by confidentiality obligations to the Owner no less strict than those set out in this Agreement. Both parties agree that a breach of confidentiality obligations by the other party may cause immediate and irreparable monetary damage to the Owner and the Owner will be entitled to seek injunctive relief in addition to all other remedies.
(a) Subscriber Warranty. Subscriber warrants that: (i) it has validly entered into this Agreement and has the legal power to do so and (ii) any Proprietary Information provided pursuant to this Agreement does not infringe, violate or misappropriate the intellectual property rights of any third parties.
(b) Rival Warranty. Rival warrants that (i) it has validly entered into this Agreement and has the legal power to do so and (ii) any Proprietary Information provided by Rival pursuant to this Agreement and the Solution do not infringe, violate or misappropriate the intellectual property rights of any third parties.
(c) Disclaimers. Rival does not warrant that the Solution will be compatible with Subscriber’s computer systems or any Internet technology. Subscriber acknowledges that certain minimum system requirements are required to use and access the Solution, which have been communicated to Subscriber and are subject to change. Subscriber further acknowledges that Rival is not responsible for these minimum system requirements and it is Subscriber’s and the Participants’, as the case may be, responsibility to ensure their computer systems meet the minimum system requirements. Rival disclaims any liability for deficiencies in performance caused by Internet latency, downtime, etc. Rival does not warrant that any person will agree to participate in the activities conducted by Subscriber using the Solution, or that any Participant will maintain the confidentiality of any information provided to such person, and disclaims any responsibility therefor. Rival does not warrant the veracity of Participant Data and disclaims any responsibility therefor. Rival shall not in any way be responsible for failures, errors, and malfunctions caused in whole or in part by (a) Subscriber’s misuse or faulty operation of the Solution; (b) Subscriber’s non-compliance with the AUP; (c) Subscriber’s use of the Solution in combination with software or equipment not expressly approved by Rival; or (d) the failure of Subscriber’s internal systems to meet Rival’ minimum specifications in effect at the time of occurrence. Rival does not warrant that access to the Solution will be uninterrupted or error-free. Rival shall not be liable for data system failure or damage to Subscriber’s internal system as a result of interaction between the Solution and Subscriber’s internal systems, unless the failure or damage is clearly the result of defect in the Solution. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR AGREEMENTS RELATED TO THE SUBJECT MATTER HEREOF, THAT ARE NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
(a) Rival Indemnification. Rival will defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by a third party alleging that the Subscription to the Solution in accordance with this Agreement infringes, violates or misappropriates such third party’s intellectual property rights (a “Claim Against Subscriber”), and will indemnify Subscriber from any damages, attorney fees and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a court-approved settlement of, a Claim Against Subscriber, provided Subscriber (i) promptly gives Rival written notice of the Claim Against Subscriber, (ii) gives Rival sole control of the defense and settlement of the Claim Against Subscriber (except that Rival may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability), and (iii) gives Rival all reasonable assistance, at Rival expense. If Rival receives information about an infringement, violation or misappropriation claim related to the Solution, Rival may in its sole discretion and at no cost to Subscriber (i) modify the Solution so that it no longer infringes, violates or misappropriates third party intellectual property rights, (ii) obtain a license for Subscriber’s continued use of the Solution in accordance with this Agreement, or (iii) terminate Subscription upon thirty (30) days’ written notice and refund Subscriber any prepaid fees covering the remainder of the Subscription Term. The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from Subscriber’s breach of this Agreement.
(b) Subscriber Indemnification. Subscriber will defend Rival against any claim, demand, suit or proceeding made or brought against Rival by a third party resulting from (i) the use of any Rival service or product by Subscriber in violation of this Agreement; (ii) the use of any material supplied by Subscriber to Rival, that infringes on the proprietary rights of a third party, or otherwise constitutes a copyright infringement; and (iii) any violation of any law relating to defamation or the right to privacy, arising out of or relating to any use of the Solution (a “Claim Against Rival”), and will indemnify Rival from any damages, attorney fees and costs finally awarded against Rival as a result of, or for any amounts paid by Rival under a court-approved settlement of, a Claim Against Rival, provided Rival (i) promptly gives Subscriber written notice of the Claim Against Rival, (ii) gives Subscriber sole control of the defense and settlement of the Claim Against Rival (except that Subscriber may not settle any Claim Against Rival unless it unconditionally releases Rival of all liability), and (iii) gives Subscriber all reasonable assistance, at Subscriber expense.
(c) This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 11.
EXCEPT WITH RESPECT TO A BREACH OF SECTIONS 6, 7 AND 8, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
The Agreement will be in effect from the Effective Date and continue in full force and effect until terminated in accordance with its terms (“Subscription Term”). Subject to the relevant Order (and after the initial Term set out therein), either party may terminate this Agreement with sixty (60) days written notice to the other party. Upon termination: (a) the Subscription will immediately cease and each of the parties will return to the other or destroy all Proprietary Information belonging to such other party; and (b) all Fees will be payable in full up to the effective date of termination. All Subscriber Proprietary Information collected and stored through the Solution will be available to Subscriber for export or download for a period of thirty (30) days after effective date of termination. After such sixty (60) day period, Rival will have no obligation to maintain or provide Subscriber Proprietary Information, and will thereafter delete or destroy all copies of Subscriber Proprietary Information on Rival systems or otherwise in Rival’ possession or control.
(a) Announcements/Publicity. Rival may: (i) upon execution of this Agreement, display Subscriber’s name and logo on Rival’ website and in Rival’ customer lists, subject to Rival’ compliance with Subscriber’s logo usage requirements as provided by Subscriber; (ii) upon commencement of the Services, issue a press release announcing Subscriber’s successful launch of the Solution, subject to prior written approval of content by Subscriber; and (iii) following a period of six months of Subscriber’s use of the Solution, issue a press release regarding Subscriber’s successful use of the Solution, subject to prior written approval of content by Subscriber. In addition, Subscriber will: (i) provide a reasonable number of reference calls as requested by Rival; (ii) participate as the subject of a case study prepared by Rival at its expense, subject to Subscriber’s written approval of content; (iii) participate as a Rival sponsored individual speaker or a joint speaker with Rival at a conference, subject to reasonable advance notice provided by Rival; (iv) participate in a joint webinar with Rival regarding the benefits achieved through use of the Solution; and (v) serve as a press reference in media publications regarding use of the Solution and agree to a future conversation with a media publication for an article about use of the Solution or a related topic, subject to reasonable advance notice provided by Rival.
(b) Rival Link. Subscriber authorizes the footer “Powered by Rival” to appear as a small logo at the bottom of each page on the Insight Community or elsewhere in the Solution during the Subscription Term.
(c) Force Majeure. Neither party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labour conditions, earthquakes, acts of terrorism or war, Internet or telecommunications failure or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party. In the event that a force majeure event affecting a party continues for a period of longer than thirty (30) days, either party shall be entitled to terminate this Agreement as of the date specified in written notice to the other party to that effect.
(d) Entire Agreement and Order of Precedence. This Agreement, including all Orders, is the entire agreement between Rival and Subscriber regarding the Subscription, Solution and Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted and no other terms or conditions issued by either party including without limitation any terms set forth in a purchase order, shall be binding on the parties. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) an Order, and (3) any other documentation.
(e) Assignment. This Agreement shall bind and ensure to the benefit of Rival and Subscriber and their respective successors and permitted assigns. Subscriber may not assign this Agreement to a third party, without Rival’ prior written consent (not to be unreasonably withheld).
(f) Governing Law. Disputes arising out of or relating to this Agreement shall be governed by and interpreted in accordance with the laws of British Columbia.
(g) Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(h) Limitations on Actions. No action, regardless of form, arising from this Agreement may be brought by either party more than two years after the cause of action has accrued, except that an action for non-payment may be brought at any time.
(i) Notice. The parties agree that notices under this Agreement will be in writing and be delivered by personal delivery, facsimile, email or by overnight or express courier service, to the addresses set out above or in such other manner as each party may advise the other in accordance with this Section.
(j) Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
(k) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
(l) Counterparts. Each Order may be executed in counterparts, any one of which may be a fax, PDF or other form of electronic copy, and each of which shall be an original instrument, but all of which shall constitute one and the same agreement.
If specified in the Order, Rival may grant Subscriber a limited, personal, revocable, non-exclusive, non-assignable and non-transferable license (the “Trial Subscription”) to access the Solution: (a) on a demonstration basis only for the sole purpose of evaluating the suitability and adequacy of the Services for its internal business needs to determine whether Subscriber wishes to enter into a longer-term Subscription with Rival (the “Trial Purpose”); and (b) for a period of ninety (90) days beginning on the Effective Date specified in such Order (as it may be extended or terminated in accordance with the procedures set forth in this Section 15, referred to herein as the “Trial Period”). Rival may, in its sole discretion, extend the Trial Period by written notification to Subscriber of the extension. For the avoidance of doubt, any extension of the Trial Period shall continue to be subject to the Agreement and these Terms. On or before the last day of the Trial Period, Subscriber may elect to either: (i) terminate the Trial Subscription by written notice to Rival effective immediately after the Trial Period; or (ii) continue to access the Services past the expiry of the Trial Period, such use to be subject to Rival’s then-current standard charging rates applicable to its general customer base (“Post-Trial Fees”). For clarity, where Subscriber fails to terminate before the end of the Trial Period, the Trial Subscription shall automatically convert into a Subscription.