INTRODUCTION. Welcome to the Marketplace where Buyers and Suppliers can connect to more efficiently complete online Sample transactions.
THIS AGREEMENT GOVERNS YOUR USE OF THE CINT SERVICES AND ANY TRANSACTIONS WITH SUPPLIERS WITH WHOM YOU FIRST CONNECT VIA THE CINT SERVICES. YOU AND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT AGREE TO THE TERMS OF AND CONCLUDE THIS AGREEMENT WITH US WHEN YOU EXPRESSLY ACCEPT THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. YOU INCUR THE RIGHTS AND OBLIGATIONS OF A BUYER WHEN WE GENERATE USER LOGIN CREDENTIALS FOR YOU. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS AS SET FORTH IN THE ORDER FORM. ALL TERMS USED HEREIN ARE DEFINED IN THE DEFINITIONS SECTION AT THE END OF THIS AGREEMENT.
“Cint”, “Lucid”, “We”, “Us” or “Our”, a Cint Group company, each means (i) Cint USA, Inc. (f/k/a Lucid Holdings, Inc.), a Delaware corporation with its principal place of business at 1235 St Thomas St. Suite 201, New Orleans, LA 70130 U.S.A.; or (ii) any Cint Affiliate that signs the Order Form.
This Agreement is between You and Cint (each, a “Party,” collectively, the “Parties”) and constitutes the entire understanding related to the subject matter herein. Cint reserves the right to update, amend, supplement and otherwise modify this Agreement or the Cint Services from time to time, and adopt new or additional rules, policies, terms or conditions covering Your use of the Cint Services. Any new features that augment or enhance the Cint Services, including the release of new APIs, tools or resources, shall be subject to this Agreement and deemed a part of the Cint Services. Before We make any material changes to this Agreement, We will provide You with prior written notice, e.g., by electronic notice to Your Users via the Marketplace or email. Your continued use of the Cint Services after Our notice of any such changes shall constitute Your consent to such changes and this Agreement as so modified; provided however, if You do not agree to any such changes, You must notify Cint via legal@cint.com within thirty (30) days after receiving such notice of such changes. If You notify Cint as required, Your use of the Cint Services will remain governed by the terms in effect immediately prior to the change, but only until the end of the then-current Subscription Term. Whether You do or do not notify Cint as required, if You continue to access and purchase Sample on the Marketplace during the following Subscription Term, Your Use of the Cint Services and Your relationship with Cint will be renewed under and governed by Our then-current terms and conditions for Buyers.
1. ROLES AND RESPONSIBILITIES.
1.1 Cint’s Role. We provide Buyers and Suppliers with access to the Cint Services. Buyers and Suppliers transact directly with each other by accessing and using the Marketplace. We are not liable for the composition of Sample or the legal or compliance obligations of Buyers or Suppliers related to Sample sold and procured by Suppliers and Buyers, respectively, when accessing and using the Marketplace. If Buyers or Suppliers fail to honor their contractual and legal obligations, We may assert Our own rights against the party in breach. We may make good faith attempts to resolve any disputes between a Buyer and a Supplier, but We are not obligated to do so and are not responsible or liable for Buyers’ or Suppliers’ acts or omissions related to the Marketplace, or obligations or liability to one another.
1.2 Buyer Obligations to Cint. As a Buyer, You must comply with all Applicable Laws and the terms and conditions of this Agreement, including but not limited to Your obligations regarding Personal Data; fees and payments; interactions and activities with Suppliers, Buyer Opportunities and Buyer Opportunity Data; Marketplace Activity and OTC Activity; compliance with Applicable Laws and Our Code of Conduct; and access to and use of Our Services, the Marketplace, Marketplace Data and the Cint Technology, all as further set forth herein.
1.3 Buyer Obligations to Suppliers. As further described in Section 3 below, You must pay all fees to Cint when due and honor all obligations for Buyer Opportunities. For OTC Activity, Suppliers and their Respondents are responsible for compliance with Applicable Laws, and You are responsible for Your relationships with them under and as applicable to this Agreement. In addition to the provisions of Section 1.1, We disclaim any responsibility for, or for evaluating, OTC Suppliers’ compliance with Applicable Laws or this Agreement.
1.4 Supplier Role and Relationship to Buyers. Suppliers are responsible for their own relationships and primary privacy and other compliance obligations with respect to their Respondents and their Sample and Supplier Services. Suppliers should perform the obligations they accept with respect to particular Buyer Opportunities, and any terms specified by the Buyer. Suppliers are responsible for respecting the privacy of Respondents and complying with all Applicable Laws related to data privacy and data protection. Suppliers are responsible to ensure Respondents receive accurate and all required privacy notices and that Respondents provide consent to processing and sharing of their Personal Data as required by Applicable Laws. Additional processing obligations related to data are found in the Code.
1.5 Code of Conduct or Code. Cint, Suppliers and Buyers are independent entities, but the business practices and actions of Buyers and Suppliers may significantly impact or reflect upon Cint’s reputation and its brands. Accordingly, Suppliers and their users are required to, and Buyer and their Users shall adhere to Our then-current Code of Conduct while conducting business on the Marketplace, whether via Cint APIs or through Marketplace Activity or OTC Activity. You shall comply, and shall ensure that Your Users understand and comply, with the then-current Code, as may be updated from time to time, through education, training, and awareness, and which is available at: https://www.cint.com/legal.
1.6 Personal Data. Buyer shall ensure, and represents and warrants Respondents receive accurate and all required privacy notices and that Respondents provide consent to processing and sharing of their Personal Data as required by Applicable Laws, including but not limited to those related to data collected off the Marketplace once the survey begins. Cint will process data of Respondents as described in Cint’s then-current Privacy Policy, as may be updated from time to time, and found at: https://www.cint.com/legal. Buyers shall not re-identify any Respondents or contact Respondents outside Buyer Opportunities or Cint Services, except as required by Applicable Laws. Cint and Buyers shall each respect the privacy of Respondents and comply with all Applicable Laws related to data privacy and data protection. Additional processing obligations related to data are found in the Code.
2. CINT SERVICES.
2.1 Availability of Cint Services. We will (i) allow You and Your Users access to the Cint Services pursuant to this Agreement during the applicable Subscription Term(s) once You have purchased the Cint Services via an Order Form; (ii) provide technical support to You through Our end user support team, at no additional charge; and (iii) use commercially reasonable efforts to make the online Cint Services available 24 hours a day, 7 days a week in the Public Cloud, except for: (a) downtime for Scheduled Maintenance or emergency maintenance, and (b) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, hurricane, civil unrest, act of terror, pandemic or endemic, strike or other labor problem, or Internet service provider failure or delay.
2.2 Scheduled Maintenance and Emergency Maintenance. Cint will provide You with at least seven (7) days’ advance written notice (e.g., electronic notice to Your Users via the Marketplace or email) of any scheduled maintenance, including the time and the length of the scheduled maintenance period (“Scheduled Maintenance”). If Cint deems it necessary to perform emergency maintenance on the Marketplace (i.e., any downtime that is not Scheduled Maintenance), Cint will use commercially reasonable efforts to provide You with advance notice (e.g., electronic notice to Your Users via the Marketplace or email).
2.3 Security Measures. In order to protect the integrity and quality of Sample sold on the Marketplace, Cint may, without liability, suspend or terminate any or all access to the Cint Services by revoking Your Cint Integration keys or restricting Your User login(s): (i) following a possible, threatened or actual security breach or cyber-attack on Cint or its Public Cloud, (ii) in order to protect Cint’s network in the Public Cloud, (iii) if required by a governmental entity or law enforcement agency, (iv) if You or a User or Respondent is causing technical or other problems to the Public Cloud or Marketplace, (v) upon the termination or expiration of a Subscription Term, or (vi) as otherwise allowed under this Agreement or for Cint’s business necessity.
3. BECOMING A BUYER ON THE MARKETPLACE.
3.1 Access to Marketplace as a Buyer. You will be granted access to the Marketplace as a Buyer by executing an Order Form and agreeing to pay the Buyer Fees (as described in the applicable Order Form) and satisfying Our credit processes.
3.2 Sample Cost and Buyer Fees for Marketplace Activity. Using the Marketplace, Buyers establish and agree upon distinct pricing with each Supplier participating in the Buyer Opportunity, which amounts are then aggregated as the total Sample Cost. In addition to the Sample Cost You pay to the Suppliers, You will pay Us certain Buyer Fees for each Buyer Opportunity, in accordance with the Order Form. Unless otherwise explicitly stated in the Order Form, Buyer Fees stated in the Order Form are only valid for one Subscription Term, and Cint may amend Buyer Fees and/or associated rebates for any subsequent Subscription Term at least seven (7) days prior to the commencement of such new Subscription Term by notifying You in writing (including via email).
3.3 Counterparty Transactions. In the case of Marketplace Activity, the Marketplace is used to source Sample from a Supplier on behalf of You as a Buyer. Cint is counterparty to this transaction, which means on a monthly basis, Cint invoices You as the Buyer directly for cost of Sample sourced via the Marketplace, and the Supplier invoices Cint directly for cost of Sample acquired via the Marketplace. Buyers and Suppliers do not send or receive invoices to or from one another.
3.4 Over-the-Counter or OTC Activity. Cint is not counterparty to OTC Activity. Suppliers invoice Buyers directly for cost of Sample delivered on the Marketplace.
3.5 Invoicing. Cint will invoice Buyer monthly for (i) the Sample Cost of Marketplace Completes, and (ii) the Buyer Fees, including reconciliation adjustments and any related charges (as described in Section 3.7 below). All invoices will be submitted to the billing contact specified in the Order Form, as may be updated by Buyer at least thirty (30) days in advance, in writing. Buyer will be charged the Annual Fee upon execution of the Order Form. The Annual Fee will be applied to Buyer Fees as incurred on the Marketplace. In the event the Buyer Transaction Fees (as set forth in the Order Form) for the year exceed the Annual Fee, You will be charged incremental Buyer Transaction Fees monthly. The Annual Fee does not include the Buyer Commission (as set forth in the Order Form), any Supplier commissions, or any fees for premium services. The Annual Fee is waived for the Pilot Period. Unless otherwise specified in the Order Form, all payments are due within thirty (30) days after the date of the invoice. Cint may charge Buyer interest on overdue payments at the rate of 1.5% per month on the amounts overdue.
3.6 Taxes. Buyer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Buyer hereunder. All federal, state or local taxes applicable to the Cint Services shall be added to each of Cint’s invoices for the Cint Services. Buyer shall pay all such taxes to Cint unless a valid exemption certificate is furnished for each of the states or territories of use of the Cint Services by Buyer.
3.7 Reconciliation Process. For purposes of this Section 3.7, “Terminated” means a transaction executed and concluded by a Respondent for a Buyer Opportunity that does not qualify as a Complete for the reasons described in this Section 3.7 or in the Reconciliation Policy found at: https://www.cint.com/legal. During a Reconciliation Window, Buyer has the right to adjust the status of transactions for both Marketplace Activity and OTC Activity from Completed to Terminated or from Terminated to Completed; provided however, such reconciliations shall be processed in accordance with the Code, this Agreement, the terms and conditions for Buyers on the Marketplace, and the Reconciliation Policy. Reconciling transactions from Terminated or “In Screener/Drop” to Completed is necessary when technical errors prevent the recording of a Completed status on the Marketplace. Buyer can make these adjustments for both Marketplace Activity and OTC Activity; provided however, related to Marketplace Activity, Cint reserves the right to reject reconciliations in its sole reasonable judgment. AFTER THE RECONCILIATION WINDOW, YOU SHALL PAY FOR ALL SAMPLE COST AND ASSOCIATED BUYER FEES THAT HAVE NOT BEEN RECONCILED.
3.8 Payment Disputes. If You believe any invoice from Us is incorrect, You must pay the undisputed portion in accordance with this Agreement and contact Cint in writing regarding the disputed portion within thirty (30) days of invoice date, setting forth the nature and amount of the requested correction directed to lucidaccounting@cint.com. Otherwise, invoices are final and payable when due. Cint has the right to reissue any incorrect invoices and recover any amounts still due and owing by You as a result of any such correction.
4. ACCESS TO AND USE OF CINT SERVICES.
4.1 Use of Cint Services. Subject to Your compliance with this Agreement, You may access and use the Cint Services solely for Your own business purposes or for Your own end-clients during the applicable Subscription Term. We reserve the right to immediately terminate Your access to the Cint Services if We become aware You are in breach of any obligations under this Section 4. By using the Cint Services, You represent that You are not owned or controlled by nor acting on behalf of, any person or entity (i) located or organized in Cuba, Sudan, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or region that is subject to comprehensive U.S. economic sanctions, (ii) identified on the Specially Designated Nationals and Consolidated Sanctions List administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, or (iii) with whom U.S. persons are otherwise prohibited from transacting.
4.2 Your Responsibilities. You will be responsible for (i) protecting Your Buyer Opportunity Data, (ii) preventing unauthorized access to or use of the Cint Services, and immediately notifying Us of any unauthorized access or use, (iii) ensuring that You, Your Affiliates and Your Users are accessing and using the Cint Services only in accordance with this Agreement, (iv) ensuring compliance with Applicable Laws related to concluding Buyer Opportunities off the Marketplace, and (v) ensuring the security of links from the Marketplace to the survey hosting platforms used by You and any links back to the Marketplace. You are responsible for all activity conducted under Your User accounts and shall abide by all Applicable Laws in connection with Your and Your Users’ use of the Cint Services, including those related to data privacy, international communications, COPPA and other age restrictions, the transmission of data, and data subject consents related to Your Buyer Opportunities. You will ensure Your and Your Users’ access and use of the Cint Services and processing of Personal Data is conducted in strict compliance with Applicable Laws and any terms of use published by Cint generally relating to the Cint Services or this Agreement, as amended from time to time. You and Your Users shall refrain from using or processing any data of Respondents except as expressly permitted in this Agreement and fully disclosed in the privacy statement that Cint provides to Respondents on the Marketplace, as amended from time to time.
4.3 Non-Circumvention. Neither You nor Your Users shall make any attempt to circumvent the workings, intent or purpose of the Marketplace by avoiding the payment of, or otherwise reducing, all or any portion of the payments, fees and charges payable to Cint (whether by simulation, side agreement, or understating the consideration due for Marketplace Completes and OTC Completes) or otherwise using the Cint Services inconsistent with supporting market, opinion and social research. For clarity, Buyer is prohibited from using Buyer Opportunity Data to circumvent use of the Marketplace with Suppliers.
4.4 Prohibited Uses. Your use of the Cint Services shall not include service bureau use, reselling, outsourcing, renting, distributing, sublicensing, or otherwise commercially exploiting or making available to any third party the Cint Services or Cint Technology. You shall not and shall not permit any User, Affiliate or third party to: (i) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble or decompile the Cint Services or Cint Technology or any part thereof or otherwise attempt to discover any source code or modify the Cint Services or Cint Technology in any manner or form; (ii) “frame” or “mirror” the Marketplace or Cint Technology on any other server or wireless or Internet-based device; (iii) access, penetrate, probe or scan the Cint Services or Cint Technology for purposes of monitoring availability, performance or functionality or for any other benchmarking or competitive purposes; (iv) identify the Respondents or otherwise publish material on the Marketplace that is intended to identify or otherwise collect personally identifiable information (“PII”) about or from the Respondents; (v) use the Cint Services to conclude fraudulent or otherwise illegal Buyer Opportunities; or (vi) use the Cint Services for the purpose of building a similar or competitive product or service. You shall not and shall not permit any User, Affiliate or third party to use the Cint Services, Marketplace Data, Respondent Screening Data or Cint Technology: (a) in violation of, or cause another person to be in violation of Applicable Laws, including without limitation, COPPA, CalOPPA or the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury; (b) to publish, post, upload, send, store or otherwise transmit material that is unlawful, harassing, libelous, defamatory, threatening or otherwise in violation of any third-party rights of privacy, publicity or other proprietary or Intellectual Property Rights; (c) to publish, post, display, upload or otherwise distribute or transmit material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs intended to interfere with or otherwise disrupt the integrity or performance of the Marketplace or Marketplace Data contained therein; or (d) to gain unauthorized access to the Marketplace or its related systems or networks.
5. CONFIDENTIALITY.
5.1 Confidentiality and Non-Disclosure. During the Term of this Agreement, each Party may be furnishing certain information (“Disclosing Party”) to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). The Confidential Information of the Parties includes this Agreement and all Order Forms (including all Buyer Fees), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Disclosing Party. As between You and Cint, the Parties agree to hold Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. Confidential Information does not include any information that: (a) is, or later rightfully becomes, available to the public, (b) was in the Recipient’s rightful possession prior to receipt of the information from the Disclosing Party, (c) is later disclosed to the Recipient by a third party who has no obligation of confidentiality, (d) is evidenced as independently developed by the Recipient without the use or benefit of the Confidential Information, or (e) is made available by the disclosing Party on the Marketplace (except as provided below in Section 6.2. This Agreement does not prohibit the disclosure of Confidential Information to the extent required by applicable law, regulation, rules of a recognized stock exchange or court order. Each Party agrees to use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (at all times exercising at least a commercially reasonable degree of care) and not to use or disclose Confidential Information except to the extent required by law or any court or other tribunal with appropriate jurisdiction, necessary to perform its obligations or exercise rights under this Agreement or as directed by You or made available by You to the Marketplace. Either Party may disclose Confidential Information on a need-to-know basis to its Affiliates, Users and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section 5.1. The obligations of confidentiality under this clause shall survive for five (5) years after any expiration or termination of this Agreement.
5.2 Publicity. You grant Us the right to use Your company name and logo as a reference for marketing or promotional purposes, on Our website, and in other public or private communications, with Our existing or potential customers, and subject to Your standard trademark usage guidelines as provided by You to Us in advance, in writing. You may send Us an email at marketing@cint.com if You do not want Us using Your company name or logo.
6. PROPERTY RIGHTS AND RESPONSIBILITIES.
6.1 Ownership of Cint Technology. This Agreement contains a right to access and use the Cint Services during the Subscription Term, not a transfer of title to the Cint Technology. As between You and Cint, all Intellectual Property Rights in and to the Marketplace Data, Marketplace and Cint Technology belong exclusively to Cint USA, Inc. (f/k/a Lucid Holdings, Inc.) or Cint Affiliates and its or their licensors. You are granted no licenses of any kind to any Cint Services, Cint Technology or Intellectual Property Rights of Cint. You shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Marketplace, unless otherwise agreed by Cint in writing. Cint reserves the right to make changes and updates to the functionality or performance of the Cint Services from time to time at its sole discretion. To the extent You or Your Users provide any suggestions, comments or other feedback related to the Cint Services or the Cint Technology (collectively, “Feedback”), You grant Cint a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to use such Feedback or subject matter thereof in any way and without limitation or an accounting.
6.2 Your Rights and Responsibilities. As between You and Cint, all Intellectual Property Rights in and to Your Buyer Opportunity Data is owned exclusively by You. You, not Cint, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of any data submitted to or entered by You and Your Users on the Marketplace; provided however, Cint acknowledges that certain data entered by You or Your Users related to a Buyer Opportunity will be treated as Your Confidential Information by Cint, specifically: (i) the CCPI or client revenue to the Buyer, (ii) project, client and internal survey name, and (iii) names of primary and secondary project managers, account executives and client project managers. During the Term of this Agreement, Buyers have the right to view, access or download the Respondent Screening Data related to a Buyer Opportunity for thirty (30) days following each Respondent’s last interaction on the Marketplace specific to that Buyer Opportunity.
6.3 Cint APIs. Your use of the Cint Services may involve the use of one or more APIs between the Cint Technology and Your third-party systems and software products. You recognize that Cint holds all rights, title and interest in and to the Cint APIs, as well as any Intellectual Property Rights. Intellectual Property Rights to any software developed solely by You to consume the Cint APIs, if any, belong to You.
7. DISCLAIMER OF WARRANTIES.
7.1 DISCLAIMER. THE CINT SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, LUCID DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND SYSTEM INTEGRATION OR COMPATIBILITY. WITHOUT LIMITING THE FOREGOING, LUCID DOES NOT WARRANT OR REPRESENT THAT THE LUCID SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED, OR ERROR-FREE. THE LUCID SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LUCID IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL.
8. INDEMNIFICATION.
8.1 Indemnification by You. You shall indemnify, defend and hold harmless Cint, and its subsidiaries, Affiliates, officers, directors, employees, shareholders, attorneys and agents from and against any and all damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorneys’ fees and costs of defense) and defend Cint against any actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from or in connection with: (i) any claim alleging that Your Buyer Opportunity Data or any data published on the Marketplace by You or Your Users infringes, misappropriates or otherwise violates the rights of, or has caused harm to, a third party, or (ii) arising out of Your breach of Sections 4.2, 4.3, 4.4, 5 or 6 above.
8.2 Indemnification by Cint. Subject to Your lawful use of the Cint Services, Cint shall indemnify, defend and hold harmless You and Your parent organizations, subsidiaries, Affiliates, officers, directors, employees, attorneys, and agents from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Cint Technology directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party as of the Effective Date of this Agreement, except that Cint will not be obligated to indemnify You to the extent that an infringement or misappropriation claim is based upon use of the Cint Services in violation of this Agreement or Applicable Laws.
8.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 8, the indemnified Party shall: (i) promptly give written notice of the claim to the indemnifying Party, (ii) allow the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability), and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense, of such claim and any appeal arising therefrom. The indemnification obligations under this Section 8 are expressly conditioned upon the indemnified Party’s compliance with this Section 8.3 except that failure to notify the Indemnifying Party of such claim shall not relieve that Party of its obligations under this Section 8 but such claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations in this Section 8 shall survive termination of this Agreement for one (1) year.
9. LIMITATION OF LIABILITY.
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE LUCID SERVICES OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, DATA BREACH, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE LUCID SERVICES BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
9.2 THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT LIMITED TO THE BUYER FEES PAID BY YOU FOR THE LUCID SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3 THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO (I) BUYER FEES OR SAMPLE COSTS OR ANY OTHER FEES DUE UNDER THIS AGREEMENT, (II) BUYER’S BREACH OF SECTION 4 OR 6 OF THIS AGREEMENT, OR (III) BUYER’S INDEMNITY OBLIGATIONS UNDER SECTION 8.
10. TERM AND TERMINATION.
10.1 Pilot Period and Subscription Term(s). Unless otherwise specified in the Order Form, this Agreement commences on the Effective Date and shall continue for an initial Subscription Term as defined in the Order Form. If there is an agreed Pilot Period prior to the initial Subscription Term, the term of that Pilot Period will be defined in the Order Form. Unless You provide written notice to legal@cint.com within seven (7) days of the end of the Pilot Period, or as otherwise specified in the Order Form, the initial Subscription Term shall immediately commence upon conclusion of the Pilot Period term. Except as otherwise specified in the Order Form, subscriptions will automatically renew for additional periods equal to the then-expiring Subscription Term. Either Party may cancel the automatic renewal of a Subscription Term by providing written notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. While the Annual Fee is waived during the Pilot Period, all Buyer Fees for Sample purchased during the Pilot Period remain payable by You to Cint. Any renewal of the Subscription Term shall be subject to Cint’s then-current Marketplace Agreement available on Our website, and as may be modified in accordance with the Introduction Section above. If You do not accept an amended version of the Marketplace Agreement becoming effective before the start of a new Subscription Term, or new Buyer Fees notified in accordance with Section 3.2, then notwithstanding any notice period herein or in Section 3.2 or the Introduction Section above, You are entitled to give notice of non-renewal of the Subscription Term at any time prior to the commencement of the new Subscription Term by providing written notice of non-renewal to legal@cint.com.
10.2 Termination of Agreement. A Party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or becomes subject to U.S. economic sanctions or other Applicable Laws that would make unlawful the performance of this Agreement by either Party. Cint may terminate this Agreement immediately if You are in breach of Section 4 of this Agreement.
10.3 Suspension for Non-payment. Any breach of Your payment obligations will be considered a material breach of this Agreement. Cint, in its sole discretion and without liability, may suspend Your use of the Cint Services upon ten (10) days’ notice until all undisputed Buyer Fees and Sample Costs have been fully paid to Cint.
10.4 Effects of Termination. Upon termination of this Agreement, Your right to access or use the Cint Services immediately ceases, and Cint shall have no obligation to store, maintain, forward, or otherwise restore any data other than whatever data was previously downloaded by You. The termination of this Agreement for any reason shall not affect: (i) obligations of the Parties to account for and pay to one another amounts owed under this Agreement for activity that occurred on the Marketplace (whether before or after the notice of termination), or (ii) any other obligation or liability which either You or Cint has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination.
10.5 Termination or Suspension to Protect Data. In order to protect Personal Data and Confidential Information, Cint may, without liability, immediately suspend or terminate this Agreement: (a) following a possible, threatened or actual security breach or cyber-attack on Cint or any of its Affiliate’s assets, (b) to protect Cint’s or any of its Affiliate’s networks in the Public Cloud, or (c) as required by Applicable Law, a governmental entity or law enforcement agency.
11. GENERAL PROVISIONS.
11.1 Notice. Except as otherwise specified in this Agreement, all notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given to a Party when delivered personally to such Party or sent to such Party by reputable express courier service (charges prepaid), or mailed to such Party by certified or registered mail, return receipt requested and postage prepaid, to such Party’s address in the Order Form or any other address that such Party has identified as the address for notices by written notice hereunder to the other Party at least thirty (30) days prior to such other Party’s notice, and if to Cint, notice must also be delivered to legal@cint.com. Except as otherwise provided in this Agreement, a notice is effective only upon receipt by the receiving Party.
11.2 Governing Law; Dispute Resolution. This Agreement and all matters arising out of or relating to this Agreement are governed by, construed and interpreted in accordance with the internal laws of the State of New York, without reference to its principles of conflicts of law. All disputes arising out of or in connection with this Agreement shall be referred to and finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitral tribunal shall be composed of three (3) arbitrators, and the arbitral proceedings shall be conducted in English. The seat of arbitration shall be New York City, USA. The proceedings, all documents exchanged between the Parties, and any decision or award shall be kept confidential. The dispute resolution procedures in this Agreement shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.
11.3 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between You and Cint.
11.4 Assignment. Either Party may assign its rights and obligations under this Agreement to an Affiliate; provided, however, You will provide written notice to Cint directed to legal@cint.com); provided further, however, You may not assign this Agreement and the rights hereunder to a competitor of Cint without Our prior written approval. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Any assignment in violation of this provision shall be a material breach of this Agreement.
11.5 Expenses. Except as otherwise provided herein, all expenses incurred by each Party in performing its obligations hereunder shall be borne by the Party incurring the expense.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.7 Headings. The headings in this Agreement are for reference only and shall not limit or otherwise affect any of the meanings or interpretations of this Agreement.
12. DEFINITIONS.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, which means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these terms and conditions related to Your access to and use of the Cint Services and the Code.
“Annual Fee” means the Minimum Transaction Fee Annual (as set forth in the Order Form) specified in the Order Form. This fee represents the minimum amount of Completes multiplied by the applicable Buyer Transaction Fee specified in the Order Form that must be purchased during each Subscription Term.
“API” means an application programming interface developed by Cint.
“Applicable Laws” means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, ordinances, and requirements of any government authority (national, federal, state, local, or international) having jurisdiction, including but not limited to those related to data privacy, international communications, and the transmission of data, such as the CCPA, the GDPR, the U.S. Health Insurance Portability and Accountability Act of 1996, the United States CAN-SPAM Act, the Gramm-Leach-Bliley Act, the Children’s On-Line Privacy Protection Act, and any ordinances, rules, codes and orders of governmental authorities having jurisdiction over You or Cint, as well as relevant industry standards such as ESOMAR and the Insights Association.
“Buyer” means the business entity accepting and entering into this Agreement for the purpose of acquiring Sample for Buyer Opportunities. For certain Buyers, the Buyer may also be the Supplier.
“Buyer Fees” means the transaction fees, commissions, processing charges, and any other fees and billing terms specified in the Order Form.
“Buyer Opportunity(ies)” means an engagement, campaign, or other project defined by a Buyer, such as Sample for a survey, a recruiting effort, or some other cost-per-action effort, that is sourced by one or more specific Supplier(s) or the Marketplace.
“Buyer Opportunity Data” means any data entered or provided by Respondents once they exit or are otherwise redirected from the Marketplace to a third-party service to conclude the Buyer Opportunity, which is never stored on the Marketplace or in the Public Cloud.
“CCPA” means the California Consumer Protection Act.
“Code of Conduct” or “Code” means Cint’s then-current Code of Conduct, as may be updated from time to time, through education, training and awareness, and is available at: https://www.cint.com/legal.
“Complete(s)(d)” means a transaction executed and concluded by a Respondent for a Buyer Opportunity as evidenced through the Marketplace (specifically, the redirect link).
“GDPR” means either, as the context requires: (i) the General Data Protection Regulation (EU) 2016/679 as in force and as amended, replaced or superseded from time to time in each member state of the EU; or (ii) the General Data Protection Regulation (EU) 2016/679 as retained in UK law pursuant to the European Union (Withdrawal) Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (2019 No. 419) as in force and as amended, replaced or superseded from time to time.
“Intellectual Property Rights” means any copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), and patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other Intellectual Property Rights (whether registered or not) as may exist now and hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, or jurisdiction.
“Marketplace” means Cint’s proprietary technology, platform and data (including Cint Technology, the Marketplace Exchange and Marketplace Data).
“Marketplace Services” means the managed services related to survey design, survey programming, translation, data analysis, data presentation and reporting, obtaining registrants and participants for surveys and survey panels, assistance with advertising effectiveness campaigns, other advertising research services, and/or similar services outside the scope of this Agreement.
“Cint Services” means online access to the Marketplace and Cint APIs, as well as any technical support and other Marketplace Services provided by Cint during the Term of this Agreement. Cint Services does not include OTC Activity, Sample or any Supplier Services as well as services performed by You or any third parties on Your behalf related to the Buyer Opportunities.
“Cint Technology” means Cint’s proprietary technology (including software, hardware, APIs, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) underlying the Marketplace.
“Marketplace Activity” or “Marketplace Completes” means any Buyer Opportunity occurring on the Marketplace.
“Marketplace Data” means any data, metadata or other information that is learned, gathered, published, indexed, uploaded, created, bought or stored on the Marketplace Platform, including without limitation, the Respondent Screening Data.
“Marketplace Exchange” means a marketplace on the Marketplace Platform consisting of Suppliers and Buyers who have agreed to be participating members by either accepting this Agreement, if a Buyer, or the applicable Supplier business terms.
“Marketplace Platform” means the Public Cloud platform and application of Cint USA, Inc. (f/k/s Lucid Holdings, Inc.) based on Cint Technology that is used to facilitate Completed transactions between Buyers and Suppliers related to Buyer Opportunities.
“Order Form(s)” means an online or offline document specifying the Cint Services to be purchased hereunder during the Subscription Term, including payment terms, applicable taxes, and payment method, that is executed by You and Cint, including any addenda and supplements thereto.
“OTC Activity”, “Over the Counter Activity” or “OTC Completes” means any Buyer Opportunity on the Marketplace but not utilizing the Marketplace.
“Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, consumer or household, including, without limitation, any inferences drawn therefrom or derivatives thereof, or any other information that is regulated as “personal data” or “personal information” under Applicable Laws; which information has been obtained by, processed by, or disclosed to Cint in connection with this Agreement. For the avoidance of doubt, Personal Data shall not include any information that has been aggregated or de-identified in accordance with the standards set forth in Applicable Law.
“Pilot Period” means the period of time identified in the applicable Order Form during which no Annual Fee will be charged.
“Public Cloud” means the cloud-based Cint Services provided by Cint (and its third-party sub-processors).
“Reconciliation Window” means a period equal to the remaining days in the calendar month when the Respondent interview or transaction is concluded plus the following calendar month.
“Respondent(s)” means a natural individual who has been sent to the Marketplace by a Supplier and consented to participate in Buyer Opportunities.
“Respondent Screening Data” means all data supplied, indexed, or otherwise transmitted by Suppliers or provided by their Respondents on or through the Marketplace for the purpose of asking and answering questions and qualifying each Respondent in an attempt to Complete a Buyer Opportunity, which information is then stored by Cint in the Public Cloud.
“Sample” means access to Respondents who are made available
“Sample Cost” means the price You agree to pay for a Buyer Opportunity and the price each participating Supplier agrees to accept for the services being performed for such Buyer Opportunity, which is exclusive of any Buyer Fees.
“Subscription Term” means the period during which Buyer may access and use the Marketplace.
“Supplier(s)” means any company with a prequalified user base of individuals willing to be Respondents on the Marketplace.
“Supplier Services” means Sample sold by Suppliers and any other services Suppliers agree to make available in response to each Buyer Opportunity.
“Users” mean Your employees, representatives, consultants, contractors or agents who have been granted access to use the Marketplace on Your behalf either via user identifications and passwords or via an API integration.
“You” or “Your” means the Buyer or an Affiliate of that company that has signed an Order Form. A Buyer may also be a Supplier, which will require Your agreement to separate Supplier terms and conditions.
Version: 2023:02
Date: 01 August 2023