Last Modified on: March 30, 2009TERMS OF SERVICE AGREEMENT
OpinionPoll, ("we", "us", "our" or "OpinionPoll") provides products and services, whether fee-based or free of charge (collectively, the "Services"), through its website located at www.OpinionPoll.in (the "Website"), subject in all cases to the terms and conditions set forth in this Terms of Service Agreement (the "Agreement"). This Agreement, which may be updated by OpinionPoll from time to time, constitutes a legally binding contract between you ("you" or "Customer") and OpinionPoll. By completing the registration process and using the Services, you agree to be bound at all times by the terms and conditions of this Agreement. Please read this Agreement carefully and save it. If you do not agree with all of the terms and conditions set forth in this Agreement, you should leave the Website and discontinue your use of the Services immediately.
We encourage you to prepare and publish your own privacy statement, as applicable on your respective sites where you may be using OpinionPoll plugins for displaying the polls.
DESCRIPTION OF SERVICES OFFERED
Our Services include, but are not limited to, providing Customers with Free polling services and subsequent polling results advertised and syndicated by our OnePoll technology. Specific OnePoll Services include
OnePoll allows easy distribution of polls through a variety of online channels, including email, instant messaging (IM), RSS, blogs, and Web sites besides syndication using free plugins and URL, which could be embedded and/or linked in any websites as well as using mobile phone applications and SMS. Polls and results can also be used for by publications in print, as per the specific user agreement.
Customer may opt out of any of the above-described polling services via the Customer user interface on the Website.
OpinionPoll will provide you with the Services for which you have registered on the Website, subject to the terms of this Agreement. You agree to use the Website and Services at all times in a manner consistent with all applicable laws and regulations and in accordance with the terms and conditions set forth in this Agreement.
You agree to comply with the specifications provided by OpinionPoll to enable proper delivery, display, tracking, and reporting of OpinionPoll and Services, including without limitation by not modifying the OpinionPoll Code or other programming provided to Customer by OpinionPoll in any way, unless expressly authorized in writing by OpinionPoll.
You agree that OpinionPoll may deliver Polls and Services to Customer Website based on selected Services options in Customer account profile.
Customer is solely responsible for the Customer's Website(s) including all content and materials, maintenance and operation thereof, the proper implementation of OpinionPoll specifications, and adherence to the terms of this Agreement. OpinionPoll reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. OpinionPoll is not responsible for anything related to Customer's Site(s), including without limitation the receipt of queries from readers or the transmission of data between Customer's Site(s) and OpinionPoll.
You acknowledge that the Services we offer vary by price (including some free of charge), package features, and service options (each a "Service Plan" and OpinionPoll software application). You will only receive the Service Plan for which you have registered, and, if applicable, for which you pay all associated fees. Pricing for each Service Plan is determined by the Service Plan you select and the number of Poll impression per month. The types of Service Plans available are offered and shall be determined in our sole discretion. Details of all Service Plans currently available can be found on the Website.
ACCOUNT CREATION AND TERMINATION PROCESS
To use our Website and Services, a Customer must create an account (Free of charge) and provide basic website and contact information including, but not limited to, name, address, email address, website URLs, likes and dislikes and if applicable, payment information in the form of a credit card number and expiration date (collectively, "Registration Information"), as may be required for online payment of subscribed services. Providing false Registration Information constitutes a material breach of the Agreement and may result in our immediate termination of your use of the Website and the Services. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your password, through our "Report Abuse Module" that can be access from our homepage. You acknowledge that you are solely responsible for any and all use of your account.
In the case OpinionPoll terminates your account, you agree not to establish another account. In addition, OpinionPoll reserves the right to deactivate your account as outlined in this Agreement. OpinionPoll is not responsible for the deletion of any data that is in your account upon termination.
At any time after activation of any OpinionPoll Services, Customer may cancel the Service Plan subscribed for by providing written notice to us via email at support@OpinionPoll.in, in which case all Services being rendered will terminate on the date specified in the cancellation notice. If no date is specified, the Services will terminate at the end of the then-current billing period for paid Services or immediately for free Services.
Upon termination, Customer must remove all OpinionPoll Code from Customer's website(s). If Customer does not remove the OpinionPoll Code, we reserve the right to continue to bill the Customer until such time that the OpinionPoll Code is removed entirely from each of Customer's websites.
PAYMENT AND PRICING CHANGES
You agree to pay us any subscription fees as listed on our Website for the Service Plan Individual or Corporate you subscribed for (the "Subscription Fees") and any applicable taxes. Completion and submission of any account activation form authorizes OpinionPoll to charge the credit card/Debit Card specified in your registration for all such fees corresponding to the Service Plan. Such charges will be made on a monthly or yearly basis depending on which payment billing method is selected by the Customer. In order to avoid the full fee for any new subscription period for which you do not subscribe for Services, you must cancel the Service before the new period begins.
If you exceed the permitted number of monthly Poll impressions available under your Service Plan, you will be charged the appropriate amount for the new Service Plan tier in the following billing period. If you choose to terminate your Account after exceeding the permitted Poll impressions, you will be charged the difference between your current Service Plan tier and the new Service Plan tier upon termination.
Customers wishing to change their Service Plan may do so at anytime by sending us an e-mail to support@OpinionPoll.in, provided that you agree to pay the new fees associated with the new Service Plan. Customers opting to change Service Plans are bound by the terms and conditions set forth in this Agreement.
We reserve the right to change the Subscription Fees for any or all of the available Service Plans at any time by updating the applicable pricing information and posting such updates on the Website. New pricing terms will become effective beginning with the first full billing cycle after we post such changes to the Website. Your continued usage of the Services constitutes automatic acceptance of the changes.
As a condition of using the Service, You agree to provide OpinionPoll with a valid credit card/debit card and agree to keep current, complete, and accurate information in your account. OpinionPoll agrees to keep your credit card information confidential. You are responsible for all charges associated with usage of the Services, and you agree to pay all charges to your account, including any applicable taxes, at the rates in effect when the charges are incurred. Payment is non refundable. To the fullest extent permissible by law, you waive all claims relating to charges unless claimed within 45 days after the charge. All charges are based on OpinionPoll measurements of the Program, and credits (if any) are at the discretion of OpinionPoll. If payment for your charges cannot be charged to the credit card/debit card on file, OpinionPoll reserves the right to suspend, terminate or limit your access to the Services and to seek other payment from you.
Any failure to pay the amounts due under this Agreement will be a material breach of your obligations under this Agreement. Without limiting any other remedies available to us, YOU AGREE TO FULLY REIMBURSE OpinionPoll FOR ANY COSTS AND EXPENSES THAT OpinionPoll MAY INCUR IN CONNECTION WITH COLLECTING OR ATTEMPTING TO COLLECT ANY SUCH UNPAID AMOUNTS.
OpinionPoll shall pay Customer for providing sharing services for Sponsored Syndicated Polls on Customer Website. Customer gets in their account dashboard on the OpinionPoll Website the rate that Customer shall receive for Syndicated Poll impressions on their sites. Notwithstanding, for any previously sold inventory, Customer will be paid the prior agreed rate (after OpinionPoll margin rate has also been applied). OpinionPoll reserves the right to charge more from its clients then promised to the Customer's minimum rate offered. Customers reserve the right to opt out of the service at any given time, by requesting in writing using the relevant options in the account dashboard. OpinionPoll reserves the right to negotiate all rates at any given time, notification for the changes would be available in the account dashboard of the client and would be applicable as notified.
Where applicable customer shall receive a payment equal to the number of valid impressions of Syndicated Polls displayed on Customer's Site(s) multiplied by the Customer's specified rate and OpinionPoll's margin rate. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to Customer shall be sent by OpinionPoll within approximately thirty (30) days after the end of each calendar month that Syndicated Polls are running on Customer's Site(s) if Customer's earned balance is INR 2000 ($40) or more. In the event the Agreement is terminated, OpinionPoll shall pay Customer's earned balance within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated by Customer (following OpinionPoll's receipt of Customer's written request, including by email, to terminate the Agreement) or by OpinionPoll.
Notwithstanding the above, OpinionPoll shall not be liable for any payment based on: (a) any amounts which result from invalid votes or impressions generated by any person, automated program or similar device, as reasonably determined by OpinionPoll, including without limitation through any votes or impressions (i) originating from Customer's IP addresses or computers under its control or (ii) solicited by payment of money, false representation, or any illegal or otherwise invalid request for end users to complete syndicated Polls; (b) OpinionPoll's "Other" non revenue generating Polls (contextually relevant or Site characterization polls where there is not any paid poll inventory); or (c) as a result of any breach of this Agreement by Customer for any applicable pay period. OpinionPoll reserves the right to withhold payment or charge back Customer's account due to any of the foregoing or any breach of this Agreement by Customer, pending OpinionPoll's reasonable investigation of any of the foregoing or any breach of this Agreement by Customer, or in the event that a OpinionPoll Client/Sponsor whose Polls are displayed in connection with Customer's Site(s) defaults on payment for such polls to OpinionPoll.
Customer is solely responsible for providing and maintaining accurate contact and payment information. For Indian taxpayers, this information includes without limitation a valid PAN (Permanent Account Number issues by Income Tax Department) for non-Indian customers relevant tax laws apply. Any bank fees related to returned or cancelled cheques due to a contact or payment information error or omission may be deducted from the newly issued payment. Customer agrees to pay all applicable taxes or charges imposed by any government entity in connection with its participation.
Calculation of the appropriate Service Plan and Payment for displaying Sponsored Syndicated Polls shall be calculated solely based on Poll impressions tracked and reported by OpinionPoll. No other measurements or statistics of any kind shall be accepted by OpinionPoll or have any effect under this Agreement.
CHANGES TO AGREEMENT
OpinionPoll reserve the right to modify any of the terms of this Agreement from time to time and such modification(s) will become effective immediately after posting the modified Agreement on the Website. You agree to be bound to any changes to this Agreement when you use the Services after any such modified Agreement is posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes. If you do not wish such modifications to apply automatically to you, then it is important for you to review this Agreement before each time you use any of our Services and refrain from using such Services if you see new or different terms that you do not accept.
NON-EXCLUSIVE LICENSE GRANTED; PROPERTY RIGHTS
PROHIBITED USES CONDITIONS
Customer shall not, and would not authorize or encourage any third party to: (i) directly or indirectly generate responses, votes, referrals, or impressions of or clicks on any Poll or Service through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks, the use of robots or other automated query tools, or modifying the plugin code provided to Customer by OpinionPoll; (ii) attempt to influence or bias how readers vote on OpinionPoll syndicated Polls other than to encourage users to vote; (iii) manipulate the number of actual, perceived or reported impressions of OpinionPoll syndicated Polls; (iv) intersperse any content between the Poll and the Poll results; (v) display any Poll on any Web page or any Web site that contains any hate-related, violent, racial, abuse religion or faith or illegal content; or (vi) engage in any action or practice that reflects poorly on OpinionPoll or otherwise disparages or devalues OpinionPoll's reputation or goodwill. Customer acknowledges that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that OpinionPoll may pursue any and all applicable legal and equitable remedies against Customer, including an immediate forfeiture of any unpaid fees, termination of this Agreement, and the pursuit of all available remedies.
OpinionPoll makes no warranty, express or implied, including without limitation with respect to polls, links, referrals and other services, and expressly disclaims the warranties or conditions of non-infringement, merchantability, and fitness for any particular purpose. To the extent polls, links, referrals and other services are based on non- OpinionPoll content; OpinionPoll shall not have any liability in connection with the display of such polls, links, referrals and other services.
OpinionPoll additionally makes no warranty, express or implied, that there are no viruses or other harmful components or that OpinionPoll's security methods will be sufficient or regarding correctness, accuracy, or reliability or against interference with enjoyment of the customer's web site(s).
LIMITATIONS OF LIABILITY; FORCE MAJEURE
Except for any indemnification and confidentiality obligations hereunder or customer's breach of any intellectual property rights and/or proprietary interests relating to the program, (i) in no event shall either party be liable under this agreement for any consequential, special, indirect, exemplary, or punitive damages whether in contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy and (ii) OpinionPoll's aggregate liability to customer under this agreement for any claim is limited to the net amount paid by OpinionPoll to customer during the six month period immediately preceding the date of the claim. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of chance, labor conditions, and power failures.
Customer agrees not to disclose OpinionPoll confidential information without OpinionPoll's prior written consent. OpinionPoll Confidential Information includes without limitation: (a) all OpinionPoll technology, programming, specifications, materials, guidelines, documentation, client names, and any and all OpinionPoll client Poll and results and data relating to the Program; (b) any other information designated in writing by OpinionPoll as "Confidential" or an equivalent designation. Confidential Information does not include information that has become publicly known through no breach by Customer, or information that has been (i) independently developed without access to OpinionPoll Confidential Information as evidenced in writing; (ii) rightfully received by Customer from a third party; or (iii) required to be disclosed by law or by a governmental authority. Customer's Confidentiality obligations will survive the expiration or termination of this agreement for a period of three (3) years.
Customer agrees that OpinionPoll may use its name and logo in presentations, marketing materials, customer lists, financial reports, and Web site listings of Customers. Customer may use OpinionPoll's trade names, trademarks, service marks, logos, domain names, and other distinctive OpinionPoll brand features so long as such use is in compliance with this Agreement and is acknowledged at all times.
INTELLECTUAL PROPERTY RIGHTS
Customer acknowledges that OpinionPoll or its clients, advertisers, affiliates or licensors owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program and that Customer will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights now or hereafter in force and effect worldwide. Use of any OpinionPoll content outside of the Program as covered by this agreement is only permitted with by express written permission.
REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants that it has the right and authority to enter into this Agreement and to perform its obligations hereunder, that the granting of the rights and undertaking of the obligations hereunder will not infringe upon or conflict with any rights of a third party, and that its performance hereunder will not violate any applicable Indian laws and government rules and regulations (including without limitation the CAN-SPAM Act of 2003 of USA - as relevant Indian laws do not exist and any relevant data protection or privacy laws). Customer further represents and warrants that it is the owner of its Sites for the purposes of this Agreement and the Program. Customer further represents and warrants that each Site and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not hate-related or otherwise violent in content.
Each party agrees to indemnify, defend and hold harmless the other party, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Customer's use of the Program, the Site(s), and/or breach of any warranty, representation, covenant or agreement made by Customer in this Agreement.
The relationship between OpinionPoll and Customer is one of independent contractors, and not of agent, partner, employee or joint venture. The laws of Republic of India excluding its conflicts of laws principles shall govern this Agreement. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in New Delhi, India. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. Neither party may resell, assign, or transfer any of the rights hereunder; except in the case of a substantial change in ownership.
OpinionPoll and its licensors have expended substantial time, effort, and funds to create OpinionPoll and its Services. All Site software, design, text, information, data, databases, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements, the selection and arrangements thereof, and other content (collectively, the "Content") are the property of OpinionPoll and/or its subsidiaries, affiliates, assigns, licensors or other respective owners and are protected, without limitation, pursuant to India and foreign copyright and trademark laws.
Free polls, corporate and sponsored polls, information, images, graphics, video, audio etc. as submitted by the customers, rights and all liability to which would be retained by customers. OpinionPoll retains the right to all such content for future access and storage for a period of 33 years, after which OpinionPoll retains the right to decide to dispense of the content, rights as applicable of sponsored poll and corporate poll may vary as per terms of agreement to be individually made with each party.