RefineAI Terms and Conditions
The terms of service (“Agreement”) forms a legal contract between you (“Client”) and RefineAI, Inc. (“RefineAI”) that governs your access and use of the RefineAI services and software. By using any of the Services or the Platform, Client agrees to be bound by this Agreement. If Client is using the Platform or Services on behalf of an organization, Client agrees to this Agreement for that organization and representing to RefineAI that Client has the authority to bind the organization to their Agreement (in which event, “Client” will refer to the organization). Client may use the Platform and Services only in compliance with this Agreement and only if Client has the power to form a contract with RefineAI and is not barred under any applicable laws from doing so.
IF CLIENT DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CLIENT MUST NOT USE THE PLATFORM OR SERVICES.
1.0 OVERVIEW AND ORDERS
1.1 Campaigns and Participants
RefineAI has developed a software platform and service (the “Platform”) that enables Client to run video market research tests (“Campaigns”) and allows testers selected by RefineAI in accordance with Client’s direction (“Participants”) to perform and record Video Tests for the Client’s benefit (“Campaigns”). The Participants are neither employees nor agents of RefineAI, but are independent third-party service providers using the Platform to provide services to Client by participating in Campaigns. RefineAI expressly disclaims all liability for the acts or omissions of the Participants.
RefineAI shall provide you a limited right to access and use the Platform for the purposes of initiating and reviewing Campaigns. In addition, RefineAI may perform professional services related to such Campaigns (“Services”) in material compliance with your on-line and off-line orders (“Order(s)”). Collectively, recordings (audio and video) of Video Tests and Services deliverables shall be referred to as “Deliverables”. By completing an Order, you may initiate and review up to the number of Campaigns that you designate in your Order within the subscription period specified in the Order (the “Order Term”). Upon completion of each Campaign you initiate and review, RefineAI will provide the Deliverables specified in your Order for that Campaign. All Orders shall be deemed incorporated into these Terms and governed by the terms herein.
1.3 Campaign Video Storage
RefineAI will store up to 25 Campaign Videos per client account. If at any point a client exceeds their video storage limit by ordering a Campaign, the oldest Campaign Video (by date) on their client dashboard will be removed and replaced by the new order. Campaign videos will be stored by RefineAI for a period of one (1) year from their order completion date, after which, they will be removed from their respective client accounts.
2.0 Use of Platform and Services
2.1 Subscriptions and Seat Licenses
Unless otherwise provided in the applicable Order, access to the Platform and Services is purchased as a subscription with a designated number of administrative account licenses that can access the Platform, utilize the Services and initiate a Campaign or leverage RefineAI’s research team (“Seat Licenses”).
2.2 Seat License Limits
Seat Licenses must be assigned to individuals residing within the same department (“Workgroup”) in the applicable Order, unless otherwise agreed to in writing by both parties. With RefineAI’s prior written approval, a Seat License may be reassigned to an individual or Workgroup.
2.3 Client Responsibilities
Client will ensure Seat License holders (a) comply with this Agreement; (b) do not share login details and passwords; (c) use the Platform and Services in compliance with all applicable laws, rules and regulations; and (d) do not permit direct or indirect access to the Platform and/or Services in a way that circumvents a contractual license limit. Client will be liable for unauthorized access caused by the negligence or willful misconduct of a Seat License holder (including Client employees, subcontractors, and/or agents who are sharing access under one Seat License)
3.0 PRICING & PAYMENT TERMS
3.1 Pricing and Payment Terms
The rates and reimbursable expenses for access and use of the Platform and the provision of the Services shall be as set forth in an Order. Additional charges will apply in the event that Client’s usage of the Platform or Services exceeds the baseline parameters set forth in the applicable Order. When RefineAI invoices Client’s for fees pursuant to an Order, Client shall pay to RefineAI the full, undisputed amount of each Order within fifteen (15) days of receipt of the invoice (“Payment Period”). In the event that Client disputes an invoice, Client must notify RefineAI within the Payment Period or the invoice shall be deemed undisputed. Overdue undisputed invoices that remain unpaid fifteen (15) days after receipt shall be grounds for RefineAI to terminate Client’s access to the Platform or Services without refund of any fees paid. RefineAI will not provide any refunds if Client does not initiate all Client’s designated Campaigns before the end of the applicable Order Term. To initiate additional Campaigns, Client must complete a new Order. All Campaigns not launched within two (2) years from the date of purchase will expire, and Client will not be entitled to a replacement or refund.
Amounts payable to RefineAI under this Agreement are payable in full to RefineAI without deduction and are net of taxes (including any sales, use, excise, ad valorem, property, withholding, value added tax, or other tax and any income tax withheld at source), tariff, duty or assessment levied or imposed by any governmental authority (including without limitation any country, state, city, county, province, department, or other subdivision of government) that may be applicable to the purchase of software licenses or Services hereunder. Client shall pay and shall indemnify and hold RefineAI harmless from all such taxes and customs duties. RefineAI reserves the right to invoice for sales tax if required under the applicable taxing jurisdiction unless Client provides RefineAI with an exemption certificate or proof that Client has self-assessed.
4.0 INTELLECTUAL PROPERTY
4.1 RefineAI Property
“RefineAI Property” means any pre-existing intellectual property and related rights of RefineAI that are utilized by RefineAI in performance of its obligations under the Agreement such as computer software, templates for reports or methodologies. RefineAI Property also includes any elements of Services, subject to Client rights in Client Confidential Information and Client Property, as defined respectively in 5.1 and 4.2 below, which are of general applicability to RefineAI’s business and provision of services to other clients. RefineAI Property will be the sole property of RefineAI and even if incorporated into a Deliverable, will not be deemed to be a Deliverable. RefineAI Property shall be deemed to be RefineAI’s Confidential Information. Under the terms and conditions of this Agreement, RefineAI hereby grants Client a perpetual, worldwide, royalty-free, non-exclusive license to use the RefineAI Property solely as incorporated in the Deliverables for Client’s internal business purposes.
4.2 Client Property
No Confidential Information obtained by RefineAI from Client and no Client Property shall become RefineAI’s property. All materials, sites, software, and applications provided or made available by Client under any Orders shall be deemed “Client Property” for purposes of the Agreement. During the performance of RefineAI’s obligations under this Agreement, and subject to RefineAI’s compliance with the terms of this Agreement, Client grants to RefineAI a temporary, revocable, non-exclusive license to use Client Property solely as needed to perform RefineAI’s obligations in connection with the Agreement. This license granted by Client to RefineAI for this purpose will expire upon the earlier of: (i) the time at which such license is no longer required by RefineAI for the performance of its obligations to Client, or (ii) termination or expiration of this Agreement or the applicable Order. No other licenses, express or implied, under any intellectual property rights are granted by Client to RefineAI under the Agreement.
RefineAI agrees that to the extent that any Deliverable is subject to copyright: (a) every aspect thereof, other than RefineAI Property that may be incorporated into the Deliverable, is a “work made for hire” (as defined in the U.S. Copyright Act) for Client; (b) Client shall be considered the author of the Deliverable for all purposes; and (c) Client shall be the owner of all of the rights comprised in the undivided copyright (and all renewals, extensions, and reversions thereof, and all rental rights) in and to the Deliverable in perpetuity and throughout the universe. To the extent that any interest in any Deliverable may not be deemed a “work made for hire” under copyright law, RefineAI hereby irrevocably assigns to Client all right, title and interest in any and all rights of copyright (and all renewals, extensions, and reversions thereof) of the Deliverable other than RefineAI Property. RefineAI agrees that it will reasonably assist Client in every appropriate way and at Client’s cost with respect to Client’s proprietary rights in the Deliverables.
5.1 Confidential Information
Each party (“Recipient”) agrees to retain in confidence any non-public information provided to it by the other party (“Discloser”) that is marked, labeled or otherwise designated as confidential or proprietary, or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Discloser (“Confidential Information”). Without limiting the generality of the foregoing, Confidential Information will include, without limitation, any Personally Identifiable Information shared in connection with this Agreement or in any Campaign. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is publicly known at the time of disclosure, (b) is received by Recipient from a third party without restriction on disclosure and without breach of a non-disclosure obligations, (c) is published or otherwise made known to the public by Discloser, (d) was generated independently without reference to the other party’s Confidential Information, or (e) Recipient rightfully knew prior to receiving such information from the Discloser. Recipient shall not disclose to any third party or use any Confidential Information disclosed to it by Discloser except to Recipient’s personnel who are required to have access to the Confidential Information to fulfill performance of this Agreement, provided that all such personnel shall be obligated in writing to maintain the confidentiality of any such Confidential Information, or as otherwise expressly permitted in this Agreement, and provided further that Recipient shall obtain Discloser’s written consent (in each instance) prior to disclosing any Personally Identifiable Information received from or through Discloser. Recipient will use at least the same standard of care with the Discloser’s Confidential Information as it does with its own Confidential Information to maintain the confidentiality of the Confidential Information in its possession or control, but in no event with less than reasonable care. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to notify the other party in advance of such disclosure so as to permit the other party to request confidential treatment or a protective order prior to such disclosure; and (ii) on a “need-to-know” basis to its financial advisors, lawyers or other advisors who are obligated to maintain the confidentiality of such information. Each party acknowledges that breach of this provision may result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section.
5.2 Participants’ Personally Identifiable Information
Client acknowledges that the Platform, Campaigns and Services are not intended for the collection and processing of “Personally Identifiable Information” (defined as information that can be used to identify a particular individual, including but not limited to, name, date of birth, social security number, email, postal address, phone number and any other information that, either alone or in combination with other data, could be used to identify or contact a particular person). Client acknowledges the risks inherent in the collection of such Personally Identifiable Information, and Client disclaims all liability against RefineAI for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Client as a result of the collection, use, transfer, or other processing of Participants’ Personally Identifiable Information supplied by a Participant in connection with any Client Campaigns.
5.3 Return or Destruction of Confidential Information
Upon termination or expiration of the Agreement, or upon Discloser’s request, Recipient shall (at Discloser’s option) return, destroy, or render inaccessible all Confidential Information provided to it by Discloser under the Agreement. Promptly after receipt of written request from the other party, each party shall either promptly return the other party’s Confidential Information in its possession or control, or confirm that such Confidential Information has been destroyed or rendered inaccessible.
5.4 Accepted Use
Subject to the terms and conditions herein, Client hereby acknowledges and agrees that RefineAI may compile aggregate de-identified results or metrics from all of, or a selection of, Client’s use of the Platform, provided that such aggregated results will not contain information that could be used to individually identify Client and/or any Client Property. Such aggregate, de-identified results shall be deemed to be RefineAI’s Confidential Information. Client also hereby agrees that RefineAI may: (1) use portions of the videos made for Client to help promote the RefineAI Platform; and (2) review Client’s individual use of the Platform in order to provide Services to Client, to evaluate RefineAI’s provision of Services, and to improve RefineAI’s service offerings.
5.5 Participants And Participants’ Non-Disclosure Agreement
RefineAI will ensure that all Participants agree to terms that include confidentiality provisions prior to participating in any Campaigns hereunder. Client will be a third party beneficiary of such terms as necessary to enforce its rights. In addition, if requested by Client as part of the Services, RefineAI will facilitate the execution of a form non-disclosure agreement of Client’s individual selection by each of the Participants before they perform Services for Client.
6.0 CLIENT COMMUNICATIONS
Client agrees that Client may only communicate with Participants through the Platform, and, except for communication relating to Client’s separate business with a Participant, Client may not contact Participants or request that Participants contact Client through any other means. Client may not solicit or hire any Participant to perform Usability Testing or similar user experience and usability studies directly for Client for a period of one year from the completion of the most recent Campaign conducted on the Platform with that Participant. Any such solicitation or hiring will be considered a material breach of this Agreement and may result in the termination of Client’s RefineAI account in addition to such other remedies available at law or in equity. Client hereby gives RefineAI permission to review communications made between Client and any RefineAI Participant on the Platform to enforce this provision.
7.0 TERM AND TERMINATION
This Agreement will apply commencing on the Effective Date of the first Order from Client and will continue unless and until either party gives the other party written notice of termination. Upon notice of termination: (a) the parties will not enter into any additional Order under this Agreement; and (b) each Order entered into prior to notice of termination will continue in full force and effect until completed, unless access to the Platform or Service is terminated in accordance with Section 7.2 of this Agreement.
7.2 Termination of Orders
If either party defaults in the performance of any of its material obligations under any Order or the terms of this Agreement, then the other party may terminate such Order or this Agreement by providing written notice of such termination (including, without limitation, a reasonably detailed description of the default and the action required to cure the default); provided, however, that such termination will not be effective if the defaulting party cures the default within thirty (30) days after receipt of such notice of termination. Upon termination of any Order: (a) Client will pay RefineAI in accordance with Section 3 for access and use of the Platform and Services performed in accordance with this Agreement prior to the effective date of termination; and (b) RefineAI will deliver to Client all completed Deliverables and work in process.
Upon the expiration or termination of this Agreement, the parties’ respective rights and obligations in the following provisions shall survive: 3.0 (“Pricing and Payment Terms”) (but only with respect to undisputed amounts due and owing that accrued before the termination or expiration of this Agreement and Section 3.2 “Taxes”); 4.0 (“Intellectual Property”), 5.0 (“Confidential Information”) (but only for a period of five (5) years after any termination or expiration of this Agreement; notwithstanding the foregoing, any obligations as to Personally Identifiable Information shall survive indefinitely), 6.0 (“Client Communications”), 7.3 (“Survival”), 8.3 (“Warranty Disclaimer”), 9.0 (“Limitation of Liability and Waiver of Consequential Damages”), 10.0 (“Indemnification”) and 11.0 (“General Provisions”).
8.0 WARRANTY AND WARRANTY DISCLAIMER
8.1 RefineAI Warranties
RefineAI represents and warrants that the Services provided by RefineAI, if any, shall be provided in a professional and workmanlike manner. RefineAI’s sole and exclusive liability for any breach of the above warranty shall be limited to re-performance of the Services. RefineAI also hereby represents and warrants that (a) RefineAI has full power and authority to enter into the Agreement and this Agreement will constitute a valid and binding obligation of RefineAI; and (b) RefineAI’s execution of the Agreement does not violate any other agreement to which RefineAI is subject.
8.2 Client Warranties
Client hereby represent and warrants that Client (a) has full power and authority to enter into the Agreement and the terms of conditions of this Agreement will constitute a valid and binding obligation of Client; (b) will use the Deliverables and the Services in compliance with all applicable laws, rules and regulations (including, but not limited to, applicable privacy laws and regulations); (c) Client’s execution of this Agreement does not violate any other agreement to which Client is subject; (d) will use the Platform and Services for qualitative research and related purposes only; and (e) will not use the Platform and Services for the purpose of distributing computer viruses, malware, spyware or similar items to Participant’s computers or other devices.
OTHER THAN AS SET FORTH IN THIS AGREEMENT, RefineAI EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE PLATFORM, THE CAMPAIGNS OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RefineAI PROVIDES THE SERVICES AND DELIVERABLES SOLELY FOR INFORMATIONAL PURPOSES TO CLIENT. CLIENT IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.
9.0 LIMITATION OF LIABILITY AND WAIVER OF CONSEQUENTIAL DAMAGES
IN NO EVENT WILL RefineAI BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT REFINEAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REFINEAI’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT TO RefineAI FOR THE USE OF THE PLATFORM OR SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES.
10.1 Client Indemnification Obligations
Client agrees to indemnify, defend and hold RefineAI harmless against any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Participant as a result of the collection, use, transfer, or other processing of Participants’ Personally Identifiable Information when specifically requested by Client in connection with any Client Campaigns.
11.0 GENERAL PROVISIONS
Neither party may assign this Agreement without the other party’s prior written consent except in the event of a merger, acquisition or sale of substantially all of an assigning party’s assets. Any attempt to assign this Agreement other than as permitted above will be null and void.
To obtain access to the Platform or Services, Client may be required to obtain an account with RefineAI by completing a registration form and designating a user ID and password. When registering with RefineAI Client must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. By registering with RefineAI, Client agrees that RefineAI may send Client communications or data regarding the Platform or Services, including but not limited to promotional information and materials regarding RefineAI’s products and services, via electronic mail.
Notice shall be deemed given upon receipt via e-mail, personal delivery, delivery by a nationally recognized overnight delivery service (e.g., FedEx), or postage prepaid by certified or registered mail, return receipt requested. Notices to RefineAI will be sent to: Bharat Krish RefineAI, Inc., 120 SW 8th St., Miami, FL 33130. Unless noted otherwise by Client, notices to Client will be sent to the address appearing on the applicable Order form.
11.4 Governing Law
The Agreement shall be governed by and construed under the laws of the State of California without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties hereby submit to the exclusive jurisdiction and venue in the United States District Court for the District of Northern California or in the state courts with competent jurisdiction located in Santa Clara, California, and agree to have any action or proceeding between the parties or their successors, or upon, concerning, or related to this Agreement, any Order(s), the Terms and Conditions or any other agreement, transaction or dealing between the parties, heard by a judge of such courts. Accordingly, the parties waive their right to trial by jury in any such action or proceeding.
11.5 No Agency
The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.
If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
11.8 Force Majeure
RefineAI will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.
Client agrees that RefineAI may use Client’s company name and logo on RefineAI’s client lists on RefineAI’s Platform, website, and marketing materials and to promote RefineAI’s service in any way.
11.10 Entire Agreement
This Agreement constitutes the complete and exclusive agreement between Client and RefineAI with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. RefineAI expressly objects to any additional or conflicting terms proposed by Client in a Client purchase order or otherwise. No Client form shall modify the terms of this Agreement. This Agreement may only be modified or amended by a written amendment executed by both parties.
Questions, comments and requests in relation to this Agreement should be sent to support@RefineAI.com, or via regular mail to:
RefineAI, Inc. 120 SW 8th Street, Miami, FL 33130
Last updated: August 17, 2017