Master Services Agreement

MASTER SERVICE AGREEMENT

The following terms and conditions of this Master Service Agreement (“MSA” or “Agreement”) constitute a legal agreement between the Customer (as defined on the Statement of Work) and Inkblot Holdings, LLC, a New Hampshire Limited Liability Company, with a principal place of business at 9 Sherwood Road, Windham, NH 03087 (“Inkblot”), effective as of the date of execution (the “Effective Date”).

BY EXECUTING THIS AGREEMENT THE CUSTOMER CONSENTS TO BE BOUND BY AND IS BECOMING PARTY TO THIS AGREEMENT WITH INKBLOT. CUSTOMER’S RIGHT TO USE THE SOFTWARE OR SERVICE IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. IF CUSTOMER IS ACCESSING THE SERVICE ON BEHALF OF AN EMPLOYER OR ANOTHER ENTITY, CUSTOMER REPRESENT AND WARRANT THAT IT HAS THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF.

IF CUSTOMER DOES NOT AGREE WITH THE TERMS HEREIN, DO NOT EXECUTE THIS AGREEMENT.

DEFINITIONS
1. Definition Matters.
  1. Definitions of terms applicable to one or more particular Section(s) of this agreement may be incorporated within the following Sections of this agreement.
  2. Additional definitions related to materials, intellectual property, prospective Deliverables, prospective Services Creations, and other relevant matters can be found at https://www.inkblotanalytics.com/legal-definitions and is deemed incorporated herein. Each definition therein may be referred to herein as an MSA Definition.
  3. Should an MSA Definition conflict with a definition within the main body of this agreement, the MSA Definition supersedes the main body definition.
  4. Customer acknowledges (and the parties agree) that:
    1. The Inkblot MSA Definitions will be updated by Inkblot from time to time;
    2. Updates will include the addition, modification, and deletion of MSA Definitions.
    3. Updates are published on Inkblot’s website at https://www.inkblotanalytics.com/legal-definitions
    4. Inkblot publishes a “Revised Set of MSA Definitions” as frequently as it becomes reasonably necessary in Inkblot’s sole and exclusive opinion.
    5. Inkblot has the right to record visits to its website pages.
    6. Customer is responsible for maintaining its knowledge of the Inkblot MSA Definitions. Therefore, Customer is encouraged to review the MSA Definitions from time to time.
    7. Failure of notification of updates and revisions of MSA Definitions does not excuse Customer from its obligation to remain current with the MSA Definitions.
    8. Customer’s continued use of the Services following the posting of changes will constitute Customer’s acceptance of any and all posted changes.
    9. The definition of each defined term presented in each Revised Set supersedes all prior definitions of such term. If a defined term is related to a controversy between the parties, the MSA Definition as of the date of the earliest event giving rise to the controversy is the applicable definition.
SUBSCRIPTIONS AND STATEMENTS OF WORK
1. Free Services. Inkblot may offer Free Services. Additional terms and conditions may apply with a Free Services. Any such additional terms and conditions are incorporated into this Agreement by reference are legally binding.
  1. No Warranty. FREE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND and without any warranties made elsewhere in this agreement.
  2. Scope Of Free Services. Free Services can be provided simultaneously to a Service Term in which Inkblot is performing Purchased Services according to a Statement of Work. At Inkblot’s discretion, Inkblot can allow Customer to use Deliverables of Free Services. Any license to use Deliverables of Free Services are granted only for a 30, 60, or 90-day period, or as noted on the relevant Statement of Work. If no time period is noted on the relevant Statement of Work, the license to use Deliverables of Free Services are granted for 30 days.
2. Purchased Services. Inkblot shall make Purchased Services available to Customer pursuant to this Agreement and the relevant Statement of Work during a Service Term as defined in a Statement of Work.
  1. No Breach Due To Outcome or Result. The Services provided by Inkblot can yield unexpected outcomes, including but not limited to, research results that don’t support Customer’s hypotheses, advertising campaigns that don’t perform as expected, or training curriculums that don’t match Customer’s expectations. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future outcome or results nor dependent on any oral or written comments made by Inkblot regarding the outcomes or results. A difference between what Customer had wanted or expected and the Services performed do not constitutes a material breach of this agreement.
3. Service Plans And Pricing. When a Customer signs up for a Purchased Service, it is required to select a Plan from the list of Plans presented and authorized by Inkblot. This Plan will detail fees and may or may not contain various provisions, surcharges, and overage use charges as well as any usage limitations. Inkblot may modify the Purchased Service pricing or ask Customer to select a different plan at any time, unless the plan Customer selected has a time commitment associated with it - in such case the pricing will not be modified during the period which Customer has subscribed to, but pricing may be modified for future Plan periods.
4. Statement of Work. Inkblot shall perform the Services described and agreed to within a written Statement of Work that incorporates and expressly references this MSA by name and date of execution. Each Statement of Work shall, as applicable, set forth:
  1. A description of the Services that Inkblot is expected to provide, which description shall include key objectives and deliverables, if any of either;
  2. Fees and Expenses
    1. Services Fees that will be charged by Inkblot and paid by Customer (specific dollar amounts which may be expressed on an hourly or project basis);
    2. Anticipated Expenses: a list of anticipated expense items and their estimated costs;
    3. Aggregate Unanticipated Expense Allowance: the gross dollar amount up to which Customer shall reimburse Inkblot for materials and other out of pocket costs incurred by Inkblot (“Unanticipated Inkblot Expenses,” each incidence individually an “Unanticipated Inkblot Expense”). Such unanticipated expenses may be incurred, without need for a change order or request by Inkblot, for purposes of enabling Inkblot to perform the Services or to deliver agreed upon Deliverables (defined below), and may include, but are not limited to, expenses for subcontracting or consulting services, or purchasing data, software or software services not already licensed to Inkblot;
    4. Per Item Unanticipated Expense Allowance: a per Unanticipated Inkblot Expense maximum dollar amount for which Customer shall reimburse Inkblot without need for a change order or Inkblot request.
  3. Payment schedules;
  4. A planned schedule (timelines to the extent known) for completion of key objectives or deliverables, including preconditions, if any, to the performance of certain of the Services;
  5. Name, email, and telephone information for (i) Customer’s key contact person for the Project, (ii) for Customer’s key contact person for invoicing purposes, and (iii) Inkblot’s project manager; and
  6. Such further terms, conditions and information as the parties determine are worthy of inclusion under the circumstances.
5. Entire Agreement. All Statements of Work must be agreed to in writing by both parties. Each Statement of Work together with this agreement, but independent from other Statements of Work, constitutes the entire agreement for the Services described in such Statement of Work. In the event, however, Inkblot performs Services for Customer without an executed Statement of Work, the Services or resultant Deliverable shall constitute an agreed to Statement of Work for the purpose of interpreting other provisions herein.
6. Conflict Between SOW and MSA. In the event that a term of agreement expressed within a Statement of Work conflicts with a term expressed in this MSA, the term expressed in this MSA supersedes the conflicting term in the SOW. Notwithstanding the immediately foregoing provision, if the term as expressed in the SOW makes express reference to the herein provision with which it conflicts and the extent to which it supersedes such referenced provision, the term as expressed in the Statement of Work interpreted in its narrowest context supersedes the term as expressed in this MSA, exclusively as it applies to the Statement of Work in question without other effect on this agreement or any other Statement of Work.
7. Changes to a Statement of Work. Each party has the right to request changes and modifications to a Statement of Work. Each such written modification containing a description of the required modifications and their effect on the scope, fees and timelines specified in the Statement of Work constitutes a “Change Order” and is deemed incorporated into its subject Statement of Work upon execution by both parties. If a reasonable need arises, either party may, by email notice to the other party, unilaterally change the persons serving as individual service providers, key contacts, or project managers. Such personnel changes do not require a Change Order. All Change Orders must be in writing, agreed to by both parties, to be effective and enforceable.
8. Hardware and Equipment. Customer is solely responsible for obtaining the equipment and services necessary for Inkblot to perform the Services and for Customer to access or use the Deliverable. Customer is solely responsible for all fees associated therewith (such as programs, software, computing devices, etc.). Inkblot is not responsible for the reliability or availability of any equipment or services in Inkblot performing the services or in Customer accessing or using the Deliverable.
FEES AND PAYMENT
1. Fees. Customer shall pay all fees specified in all Statement of Work and/or Plans hereunder. Except as otherwise specified herein or in an Statement of Work or Plan, (i) fees are quoted and payable in United States dollars, (ii) depending on the Plan selected, fees may be based on either the Services purchased or on the quantity of actual usage of the Services, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
  1. Inkblot reserves the right, in its sole discretion, to change the pricing or fee structure for use of or access to some or all of the Services at any time, or for any reason, and for as many times as it deems necessary.
2. Expenses. Inkblot must obtain Customer’s prior written approval (i) for any Anticipated Inkblot expense item where the dollar amount exceeds the estimate set forth within the applicable SOW by more than 10%, (ii) for any single Unanticipated Inkblot Expense which is expected to exceed the per item limit set forth within the applicable SOW, and (iii) for total Unanticipated Inkblot Expenses to the extent that they exceed the Aggregate Unanticipated Expense Allowance set forth in the applicable Statement of Work.
3. Taxes. Customer shall be responsible for paying all direct or indirect federal, state, municipal or other governmental excise, sales or similar taxes, related to the Services or any transactions contemplated herein. Such responsibility is absolute and will apply (i) to all interest, penalties, and additions, and (ii) to present taxes and those that may be imposed in the future.
4. Disputed Invoices. Customer may not dispute an invoiced charge because Customer had wanted or expected a product, material, or service purchased with approved anticipated or unanticipated expense dollars to be of greater usefulness or benefit. Customer may dispute a line item invoiced charge only if (i) the charge is for a service or expense that had not been agreed to and cannot be classified as an unanticipated expense, or (ii) the charge exceeds the amount allowable per the terms of this agreement. No other charges may be disputed.
5. Nonpayment Breach. Customer’s nonpayment of invoiced amounts in accordance with the above terms constitutes a material breach of this agreement.
6. Overdue Charges. If any charges are not received from Customer by the due date, then at Inkblot’s discretion, such charges may accrue late interest at the rate of 4% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
7. Suspension of Service and Acceleration. If any amount owed by Customer under this or any other agreement for Services is fifteen (15) or more calendar days overdue, Inkblot may, without limiting Inkblot’s other rights and remedies, accelerate the unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
8. Collection Costs. If a payment tendered to Inkblot is returned or declined due to insufficient funds, Customer shall be liable to Inkblot (i) for any Inkblot costs or expenses associated therewith and (ii) for a service charge of $50.00. Additionally, Customer will be responsible for any costs, including but not limited to attorney’s fees, incurred by Inkblot in connection with its efforts to collect any past due amounts.
REGISTRATION AND ACCESS
1. Registration. In the performance of Services, Inkblot may use certain tools and technologies. At Inkblot’s sole discretion, Inkblot may create an account for Customer to use the tools or technologies.
2. Tool Access Information. Any information provided to Customer for access to the tools and technologies are the property of Inkblot. They may not be shared, publicly or privately distributed or otherwise used except solely to exercise the licensed rights hereunder.
3. Access and Replacing Users. Information to access Inkblot’s tools and technologies cannot be shared or used by more than one individual user but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use the Products.
SERVICE TERM AND TERMINATION
1. Service Term. Customer shall be bound for the entire Service Term of this Agreement. If no Confidential Information has been disclosed from one party to the other party and no Statement of Work has been agreed upon within 2 years of execution of this agreement, this agreement shall terminate at the end of that period.
2. Auto-Renewal. Unless otherwise specified on a Statement of Work, at the end of any Service Term, Services will automatically renew for a new Service Term, unless either party gives the other notice of non-renewal at least thirty (30) days and no more than sixty (60) days before the end of the relevant Term.
  1. Auto-Renewal Service Term. Except as otherwise specified in a Statement of Work, the length of the Service Term during any automatic renewal Term will be the same as that during the immediately preceding Term.
  2. Auto-Renewal Price. Except as otherwise specified in a Statement of Work, pricing during any automatic renewal Term will be the same as that during the immediately preceding Term plus an increase not to exceed five (5%) percent plus any increase in the Consumer Price Index published by the U.S. Bureau of Labor Statistics during the immediately preceding year in Inkblot’s sole discretion.
3. SOW Termination By Customer. Customer may terminate this Agreement and the license granted herein at any time as a result of material breach by Inkblot that remains uncured for a period of 30 days after notice.
4. SOW Termination By Inkblot. Inkblot may terminate this Agreement and the license granted herein immediately if Customer breaches any provision of this Agreement, or if Customer otherwise engages in any activity that Inkblot reasonable determines is likely to cause liability to Inkblot. Inkblot may otherwise terminate this Agreement upon thirty (30) days advance notice to Customer (which may be provided by e-mail to Customer, or by a general notice posted on Inkblot’s website). Inkblot reserves the right to change, suspend, or discontinue all or part of the Services, temporarily or permanently, without prior notice. Inkblot reserves the right to deactivate any access to tools and technologies at any time, for any reason.
5. Termination of SOW and MSA. Termination of any Services or Statement of Work (SOW) does not terminate this Master Services Agreement (MSA).
6. Effect of Termination or Completion. Upon the termination or completion of the Services under each Statement of Work, Customer (i) shall return, or have returned by a third party, to Inkblot all Inkblot Property remaining in Customer’s possession or the possession of such third party, and (ii) shall destroy, or have destroyed by a third party, all copies (in digital or other form) of such Inkblot Property, including but not limited to all content received, downloaded, or derived from the Services, Service Creations, and Deliverables.
7. Survival After Termination. The following Sections shall survive termination of this Agreement: 1, 6, 7(ii), 7(iii), and 8-23
8. No Termination of Rights or Obligations. Any termination of this Master Services Agreement or any Statement of Work does not affect any rights or obligations of the parties that may have accrued prior to that termination. Nor does such termination affect the coming into force of, or continuance in force of, any provisions which are expressly, or by implication, intended to come into or continue in force after such termination, including but not limited to any rights regarding intellectual property, indemnification and confidentiality.
GRANT
1. License To Use Customer Materials. Customer hereby grants to Inkblot a license to use and exploit Customer Materials in the performance of the services, subject to any license usage restrictions or requirements in a Statement of Work. Customer also grants to Inkblot a license to use and exploit Customer Materials, including, without limitation, combining Customer Materials with the materials of third parties and creating derivative works that incorporate, or in other ways make use of, Customer Materials. Notwithstanding the foregoing grant, (1) Inkblot is prohibited from disclosing unaggregated Customer Materials or Deliverables to any third party, and (2) Customer acknowledges and understands that the primary purpose of the grant is to permit Inkblot to aggregate and integrate Customer Materials, with materials and information from third parties and other Inkblot customers for purposes of improving Inkblot’s institutional knowledge, products and service offerings.
  1. Scope of License To Use Customer Materials. Notwithstanding anything seemingly to the contrary within this agreement, the License To Use Customer Materials granted herein to Inkblot is perpetual, irrevocable, fully paid-up, royalty-free, assignable, assumable, sub-licensable, worldwide licenses. Customer has (1) no right to terminate, cancel, or revoke such licenses, and (2) no right to monetary or other compensation from Inkblot for its possession, or use of such licenses. Such licenses are assignable by Inkblot without obligation to Customer, and are for the benefit of Inkblot and its successors. Inkblot may sublicense its rights to third parties to the full extent of the license. Inkblot and any successor or assignee may exercise the licensed rights anywhere in the world. Unless the specific license grant language indicates otherwise, the licensed rights are not exclusive to Inkblot.
2. License To Use Inkblot Survey. Subject to the terms of this Agreement, Inkblot hereby grants Customer, and Customer accepts, a limited, non-exclusive, non-transferable, non-sublicensable right to use a survey completed pursuant to Statement of Work. This license grant is a limited and restricted license to use the Inkblot survey strictly for the one research project described on the applicable Statement of Work (the “Contemplated Project”). This license (i) is for Customer’s use only, and (ii) is not transferrable in any way to any third party. The License To Use Inkblot Survey:
  1. permits Customer to collect data for the Contemplated Project,
  2. does not grant Customer the right to use any content of the survey in other surveys,
  3. prohibits Customer from sharing with, or disclosing to, any third party any content of the survey,
  4. strictly prohibits Customer from exercising any rights ordinarily reserved to an owner,
  5. expressly prohibits Customer or any other person from exercising owner-like control over Inkblot proprietary surveys, test, assessments, activities, questions or scales,
  6. requires that Customer permanently remove (or cause to be removed) all copies of Inkblot's proprietary surveys, test, assessments, activities, questions or scales, whether digital, electronic, or in any other medium, in Customer’s possession or control immediately upon completion of the Services under the applicable Statement of Work, and
  7. requires that Customer permanently remove (or cause to be removed) all data associated with the survey in Customer’s possession or control immediately upon completion of the Services under the applicable Statement of Work.
3. License To Use Deliverable. Subject to the terms of this Agreement, Inkblot hereby grants Customer, and Customer accepts, a limited, non-exclusive, non-transferable, non-sublicensable right to use the Deliverable contemplated in the Statement of Work for Customer’s own use and in accordance with any additional terms and conditions that may be set forth by Inkblot, at any time, in connection with your use of the Deliverable.
  1. Scope of License To Use Deliverable. Customer acknowledges that any license rights herein granted by Inkblot to the use of any Deliverables are limited and that regardless of the form of grant or conveyance wording hereunder or elsewhere, no ownership rights are conveyed to Customer under this Agreement or otherwise. All rights not expressly granted to Customer herein are reserved by Inkblot.
  2. No Deliverable License Term Provided. If no time period is listed on the relevant Statement of Work, the License To Use Deliverables of Free Services are granted for 30 days and the License To Use Deliverables of Paid Services are granted for 90 days.
  3. No Deliverable Listed. If no specific Deliverable is listed in a Statement of Work, then anything created under the Statement of Work is considered a Service Creation, and no license to use and no rights to own those Service Creations are granted.
  4. Open-Ended Deliverable Provision. If the Statement of Work says “Customer can ask for any Deliverable(s) it wants” then specific Deliverables must be listed in a Change Order to qualify for a License To Use Deliverable. Anything Created under a Statement of Work that is not listed as a Deliverable in a Change Order is considered a Service Creation, and no license to use and no rights to own those Service Creations are granted.
  5. No Right To Use Service Creations. Customer acknowledges and agrees that a license to use the Deliverable does not grant Customer any rights to use any Service Creations. This includes, but is not limited to:
    1. Inkblot’s proprietary Products and Platforms, including without limitation all technologies, techniques, know-how, and processes relating to, or arising out of, the Products;
    2. Inkblot’s proprietary tests, assessments, scales, and questions;
    3. Inkblot’s analytical approaches, statistical procedures, and algorithms;
    4. all software source code developed by or for Inkblot for use in its Services, and all software created in whole or in part using code owned or licensed from third parties by Inkblot;
    5. all of Inkblot’s intellectual property in existence;
    6. dashboard designs, modules, software, products, documentation and other materials created for or used with Inkblot’s dashboards; and
    7. any inventions, ideas or original works of authorship in whole or in part conceived or made by Inkblot which arise from or result from the work performed by Inkblot for Customer hereunder that is not specified by Customer in a respective SOW. Nothing herein shall be construed as granting Customer any proprietary rights in or to the Inkblot Property.
  6. Not Work Made For Hire. Customer acknowledges and agrees that nothing created by Inkblot pursuant to this MSA or any SOW is a work-made-for-hire and that all deliverables are licensed, not owned. As such, Deliverables are not a work-made-for-hire. Customer is expressly prohibited from claiming that any creation or property of Inkblot constitutes a work made for hire. Any claim by Customer that a Deliverable is a work made for hire constitutes a material breach of this agreement.
SUPPORT AND FEEDBACK
1. Obligation To Provide Feedback. Customer agrees to report to Inkblot any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties, including without limitation, those related to interoperability with or improvements to Inkblot’s Services, Service Creations, Deliverables.
2. Right To Use Feedback. Customer agrees that Inkblot shall be free to freely use, disclose, reproduce, license, distribute and otherwise exploit any such reports (and any other suggestions, improvements or modifications) that Customer provide to Inkblot, without obligation or restriction of any kind on account of intellectual property rights or otherwise. Customer agrees to make all assignments necessary to give ownership of the feedback to Inkblot.
3. Ownership of Derivative Works of Modifications. Inkblot shall own all property rights in all derivative works of feedback, suggestions, improvements or modifications of Inkblot’s Services, Service Creations, Deliverables.
DATA SUBMISSION AND USE
1. Authorized Submission of Data. Customer represents and warrants that it is authorized to submit any and all materials, data or information to Inkblot.
2. Ownership and Use of Customer Data. As between Inkblot and Customer, Customer exclusively own all rights, title and interest in and to all of Customer Data; provided however that Customer grants Inkblot a non-exclusive license and right during the Service Term to use Customer Data solely to provide the Services to Customer and as otherwise permitted herein, or as required to comply with applicable law.
3. Ownership and Use of Customer De-Identified Data. Inkblot owns all Customer De-Identified Data. Inkblot has the right to sell, license, sublicense, transfer and otherwise use such De-Identified Data in any manner, without payment or attribution to Customer, or reduction or other offset to any fees Inkblot charges.
4. Ownership and Use of Derivative Works Made With Customer De-Identified Data. Inkblot has the right to make, or have made for it,derivative works with Customer De-Identified Data. Inkblot has the right to sell, license, sublicense, transfer and otherwise use such derivative works in any manner, without payment or attribution to Customer, or reduction or other offset to any fees Inkblot charges.
5. Accuracy of Submitted Data. Except as otherwise agreed in writing, Customer is responsible for the accuracy, truthfulness, consistency and completeness of any information submitted to Inkblot, and consents to use of all Customer Data in accordance with this Agreement, and Inkblot will neither have the responsibility to review, nor any liability as to the accuracy of, any information or content submitted by Customer or its users.
6. Customer Data Exclusions.
  1. Any data produced by Services that use Products (e.g. Brand Blots Platform, Psychologize API, etc.) or other Inkblot tools are specifically excluded from Customer Data. Data collected from these products and tools are vested exclusively in Inkblot and will not be shared with Customer.
  2. Data generated in the performance of the Services, whether using Customer Data or not, or data generated independently by Inkblot is deemed to not be Customer Data.
INTELLECTUAL PROPERTY AND OWNERSHIP
1. Property Rights In General
  1. IP Owned By Inkblot. All of Intellectual Property used in and with the Services, excluding Customer Data, and all Service Creations and Deliverables produced in the performance of the Services, are the sole, exclusive ownership of Inkblot.
  2. IP Certainty. As between Customer and Inkblot, Inkblot is the exclusive owner of all Intellectual Property rights not expressly granted herein to Customer. Incorporating any feedback, suggestion or idea of Customer or of a third party does not alter Inkblot’s rights therein and does not grant Customer any rights in any such information, know-how, tools, and techniques.
  3. No Ownership In Licensed Materials By Licensee. Customer irrevocably acknowledges and agrees that, except as expressly granted under the licenses set forth herein, Customer has no interest, ownership or otherwise, in the Services, Service Creations, or Deliverables and that Customer will not challenge Inkblot’s ownership Services, Service Creations, or Deliverables and if Customer acquires any rights in any aspect of the Products Customer automatically assign and convey such rights to Inkblot.
  4. Unauthorized Use. Any unauthorized use of the Services, Service Creations, or Deliverables may violate patent laws, copyright laws, trademark laws, trade secret laws, laws pertaining to privacy and publicity rights or other laws or regulations. The copying, redistribution, use or publication by Customer of any part of IP, Service Creations, or Deliverables is strictly prohibited.
  5. The Inkblot Name. Notwithstanding any marking on any Services Creation, Deliverable, report, or correspondence, Customer will have no rights in or to Inkblot’s name or any Inkblot trade name, trademark, service mark, logo, or any property or name associated with Services.
  6. Copyright. All contents of the IP, Service Creations, or Deliverables are: ©2020-2021 Inkblot Holdings, LLC.
  7. All Rights Reserved. Inkblot reserves all rights not specifically granted herein.
2. Property Rights of Inkblot Services
  1. Customer Materials. All rights in Customer Materials are reserved to Customer. Customer hereby grants to Inkblot a nonexclusive license to utilize Customer Materials in the performance of the Services.
  2. Service Creations. Customer acknowledges that Services Creations are developed by Inkblot using its proprietary skills, tools, property, and Customer Materials and Customer Data. All rights in Services Creations are vested exclusively in Inkblot.
    1. Non-Disclosure of Service Creation. Inkblot is NOT required to share with, or show to, Customer or any third party any Service Creation, including without limitation, data visualization code, data-cleaning code or data analysis code.
  3. Deliverables. All rights in Deliverables are vested exclusively in Inkblot. Provided that Customer has timely met all herein obligations and all obligations pursuant to the applicable Statement of Work (including but not limited to all payments to Inkblot), Inkblot hereby grants to Customer a License To Use The Deliverable under the applicable Statement of Work. Notwithstanding the foregoing, the term “Deliverable” shall expressly exclude:
    1. Inkblot’s proprietary Products, including without limitation all technologies, techniques, know-how, and processes relating to, or arising out of, the Products;
    2. Inkblot’s proprietary surveys, tests, assessments, scales, and questions;
    3. Inkblot’s analytical approaches, statistical procedures, and algorithms;
    4. all software source code developed by or for Inkblot for use in its Services, and all software created in whole or in part using code owned or licensed from third parties by Inkblot;
    5. all of Inkblot’s intellectual property in existence;
    6. dashboard designs, modules, software, products, documentation and other materials created for or used with Inkblot’s dashboards; and
    7. any reports, inventions, ideas or original works of authorship in whole or in part conceived or made by Inkblot which arise from or result from the work performed by Inkblot for Customer hereunder that is not specified by Customer in a respective SOW. Nothing herein shall be construed as granting Customer any proprietary rights in or to the Inkblot Property.
  4. All rights in information concerning or related to the know-how, tools and techniques used to create the Deliverable (including the aforementioned numbers 1-7) are exclusively and irrevocably reserved to Inkblot.
  5. Deliverable Contingency. If a Deliverable is unpaid for, Inkblot does not grant a License To Use The Deliverable to Customer.
  6. Customer Ownership Limitation. Customer is expressly prohibited from granting to any third party any rights in a Deliverable (and from publishing or disclosing to any third party any Deliverable) that provides or includes information related to or useful to any person except Customer.
3. Certain Substantive Property Rights
  1. Proprietary surveys, tests, assessments, scales, and questions. All proprietary surveys, tests, assessments, scales, and questions created, modified, licensed or otherwise used, in whole or in part, during the performance of the services are the exclusive property of Inkblot.
  2. Analytical Approaches, Statistical Procedures, and Algorithms. All analytical approaches, statistical procedures, and algorithms created, modified, licensed or otherwise used, in whole or in part, during the performance of the services are the exclusive property of Inkblot.
  3. Dashboards and Platforms. All Dashboards and Platforms created, modified, licensed or otherwise used, in whole or in part, during the performance of the services are the exclusive property of Inkblot.
  4. Software Source Code. All software source code created, modified, licensed or otherwise used, in whole or in part, during the performance of the services are the exclusive property of Inkblot.
  5. Reports. All Reports created, modified, licensed or otherwise used, in whole or in part, during the performance of the services are the exclusive property of Inkblot
4. Related Rights. All rights in the know-how, tools, and techniques, (and in any information concerning or related to such know-how, tools, and techniques) used by Inkblot:
  1. in relation to Inkblot Property,
  2. in the performing of Services,
  3. to develop Services Creations, or
  4. to create Deliverables
  5. are exclusively and irrevocably reserved to Inkblot. Incorporating any feedback, suggestion or idea of Customer or of a third party, into any of the foregoing, does not alter Inkblot’s ownership rights therein and does not grant Customer any ownership right in any such information, know-how, tools, and techniques.
THIRD PARTY COMPONENTS; OPEN SOURCE
1. Open Source Notification. The Services, Service Creations, and Deliverables may contain or be accompanied by certain freeware, open source packages and libraries, or third-part software and/or components, which if included, are provided pursuant to the terms of the applicable license governing such use. Inkblot is not responsible for open source languages and does not assume any obligations or liability with respect to Customer’s use of open source languages. Customer acknowledges and agrees that any third-party and open source components may be protected by intellectual property rights which are owned by the third-party providers or their licensors and not Inkblot.
2. As-Is Basis. Inkblot’s provision of such third-party or open source components to you is solely on an “as-is” basis without any warranty from inkblot of any kind. Inkblot hereby disclaims to the maximum extent permitted by law:
  1. all warranties and indemnitees with respect to the third-party and open source components, express or implied, and
  2. all liability for direct, indirect, incidental, special, punitive, exemplary, or consequential damages, including without limitation lost data or lost profits, however arising, whether based in contract, tort, or any other legal theory, even where advised of the possibility of such damages.
3. Open Source License Terms: The third-party and open source components, if any may be identified in, and subject to, special license terms and conditions set forth in the following links:
4. Governing Open Source Licenses. Use of the aforementioned open source components are governed by the terms of such components listed above.
RESTRICTIONS ON USE OF THE SERVICES
1. Use Consistent With License and Restrictions. Customer agrees, and represents and warrants, that its use of the Services, Service Creations and Deliverables, or any portion thereof, will be consistent with the license, covenants and restrictions herein.
2. No Use of Services for Resale or Similar Intent. Customer shall not license, sublicense, sell, resell, rent, loan, lease, provide, lend, transfer, assign, distribute, disclose or otherwise commercially exploit or make available to any third party the Service Creations and Deliverables in any way.
3. No Use For Competitive Services. Customer shall not:
  1. modify, make derivative works of, or copy the Services, Service Creations and Deliverables in any way.
  2. reverse engineer, disassemble, decompile, or otherwise attempt to discover any source code or underlying ideas or algorithms of the Services, Service Creations and Deliverables.
  3. build a competitive Service, Service Creation or
  4. build Services, Service Creations and Deliverables using similar ideas, features, functions or graphics of the Service Creations or Deliverables.
  5. copy any ideas, features, functions or graphics of the Services, Service Creations or Deliverables.
4. Violation of clause 11.c. will be considered a material breach and Customer shall turn over to Inkblot the results of the violation. Customer acknowledges and agrees that the all rights to the results of any of the foregoing active (a)-(e) shall be exclusively owned by Inkblot.
5. No Use With Third Parties. Unless otherwise specified in the SOW, Customer shall not use the Services, Service Creations and Deliverables for the benefit of any third parties or in any services to any third parties without written consent from Inkblot. Customer may not provide other access to or use of the Services, Service Creations and Deliverables to third parties. Customer may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the access to the Services, Service Creations and Deliverables (or any portion thereof, including without limitation any capacity), or any portions thereof, to any third party, and any attempt to do so is null and void.
6. No Use of Services In Violation of the Law. Customer agrees that Customer will comply with all applicable laws, regulations and ordinances, and Customer will be solely responsible for its violations of any of any such laws.
7. No Use of Service Users. Customer shall not send spam from, to, or in connection with other users of the Services, Service Creations, or Deliverables, or otherwise unsolicited messages in violation of applicable laws.
8. No Use of Services For Service Interference. Customer shall not attempt to gain unauthorized access to the Services, Service Creations and Deliverables or their related systems, networks, and data. Customer may not interfere with or disrupt the integrity or performance of the Services, Service Creations and Deliverables or the content/data contained therein.
9. No Use of Service With Other Sites. Customer shall not create Internet “links” to or “frame” or “mirror” any of the Services, Service Creations and Deliverables on any other server or wireless, digital, or Internet-based device.
10. No Use of Service Marks. Customer has no rights to use any trademark, service mark, trade name or other designation of Inkblot or any other party or licensor. Customer is granted no right of publicity or other right to use Inkblot’s name or any Inkblot trade name, trademark, service mark, logo, or any property or name associated with the Products, Product Results, and Product Contents
11. Additional Prohibited Uses. When using the Services, Service Creations and Deliverables (including any interactive feature) Customer shall not submit, upload to, distribute through or otherwise post any material that:
  1. is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
  2. contains any advertising, promotional, solicitation or other commercial material;
  3. contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
  4. infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
  5. contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others;
  6. contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
  7. deep links to, frames, spiders, harvests, or scrapes the Services, Service Creations, or Deliverables or otherwise access the Services, Service Creations, or Deliverables for any purposes, or use any machine, electronic, web-based or similar device to read or extract the Services, Service Creations, or Deliverables by machine based or automated means;
  8. gains unauthorized access to the Services, Service Creations, or Deliverables or their related systems, networks, and data. Customer will not interfere with or disrupt the integrity or performance of the Services, Service Creations, or Deliverables or the content or data contained therein.
ADDITIONAL RESTRICTIONS ON USE OF SERVICE CREATIONS AND DELIVERABLES
1. No Modification of Service Content. Customer shall not modify, edit or revise any of the Service Creations and Deliverables or derivative work (e.g., a research report).
2. Inkblot’s Final Say In Content Modification. In the event Customer receives written permission to modify Service Creations and Deliverables, Customer will not distort the presentation of the Service Creations and Deliverables. Display of the Service Creations and Deliverables must be consistent with Inkblot preferences. Inkblot has the final say on such modifications and can withdraw permission to modify if the modifications do not satisfy Inkblot at any time, for any reason. Customer acknowledges and agrees that ownership of any modification to Service Creations or Deliverables vests entirely in Inkblot.
3. No Removal Of Proprietary Notice On Content. Customer may not remove, obscure, or alter any copyright, trademark or other proprietary notice from the Service Creations and Deliverables.
4. No Removal of Inkblot As Source Of Content. If the Service Creations and Deliverables are hosted on a website or used in a service in which it is displayed with third party content, Customer must ensure that Inkblot is identified as the source.
5. No Use of Content In Advertising. Customer may not use the Service Creations and Deliverables for advertising or promotional purposes.
NON-INTERFERENCE
1. Non-Interference With Service Functioning. Customer may not act in any way that prevents the Services, Service Creations and Deliverables from proper functioning, including logging the access or use of the Services, Service Creations and Deliverables.
2. Non-Interference With Business Functioning. Customer agrees that during its engagement hereunder, and for a period of twelve (12) months thereafter, Customer shall not disrupt or seek to disrupt in any manner, directly or indirectly, any contractual relationship then existing, or in negotiation, between Inkblot and any third-party.
3. No Limitation on Inkblot. Customer Agrees:
  1. Inkblot is not prohibited, or limited in any way, from generating similar Deliverables for any third party,
  2. Inkblot is not prohibited, or limited in any way, from using any Inkblot Property for any third party.
  3. Inkblot is not prohibited, or limited in any way, from creating similar Deliverables or executing similar services for any third party, regardless of the content of the confidential information.
NON-COMPETITION
1. No Competitors. Customer may not access the Services, Service Creations and Deliverables if Customer is a direct competitor of Inkblot.
2. No Competitive Users. Users of Customer’s websites, applications, products, services or any other place in which the Services, Service Creations and Deliverables may be used, cannot be a direct competitor of Inkblot, except with Inkblot’s prior written consent.
3. No Competition Of Products And Services. Customer agrees that it cannot produce any websites, applications, products or services that are competitive with Inkblot’s Services, Service Creations and Deliverables.
4. No Competition Of Products And DELIVERABLES. Customer agrees that it cannot produce any content for its websites, applications, products or services that is competitive with the content in Inkblot’s Services, Service Creations and Deliverables.
5. No Use For Competitive Benchmarking. Customer may not access the Services, Service Creations and Deliverables for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
6. Work For Customer’s Competitors.
  1. Inkblot Releasee Definition. The term Inkblot Releasee means any of Inkblot's officers, stakeholders, employees and contractors,
  2. Releasee’s Not Restricted. Inkblot and all Inkblot Releasees (subject to their contractual relationships with Inkblot) are free at all times to seek and conduct working relationships of any nature with any third party including, without limitation, any of Customer’s competitors, wherever located.
  3. Customer Prohibition. Customer is expressly prohibited from bringing, and shall not bring against any person, any action that would interfere with the business and employment activities of Inkblot or of any Inkblot Releasee during or after the term of this agreement.
  4. Non-Competition Agreements Void. Customer is expressly prohibited from requiring that Inkblot or any Inkblot Releasee sign any agreement the terms of which might prevent, prohibit, or in any way limit, Inkblot’s or any Inkblot Releasee's working for any third party (a “Non-Competition Agreement). Any Non-Competition Agreement executed by Inkblot or any Inkblot Releasee is null and void ab initio.
  5. Release of Claims. To the maximum extent permitted by law, Customer, for itself and for its affiliates (and for the officers, partners, members, and shareholders of Customer and its affiliates) (each of the immediately foregoing identified persons, a “Releasor”) hereby waives and releases Inkblot, Inkblot Releasees, and all future employers, clients, and customers of Inkblot or of any Inkblot Releasee, from all claims Customer or any other Releasor now has or may later have, that Inkblot or any Inkblot Releasee has directly or indirectly breached (or is likely to breach) any contractual or common law duty not to compete with Customer or not to disclose confidential information or trade secrets.
  6. Waived and released claims include, but are not limited to, claims that Inkblot has violated a duty to Customer to refrain from competition with Customer as well as claims grounded in the Doctrine of Inevitable Disclosure.
  7. If Customer or any other Releasor initiates or pursues any claim released pursuant to this numbered Section of this agreement, then in addition to any other remedies and recourse available to Inkblot or any of the other Releasees, this agreement will serve as a complete defense to, and a basis for dismissal of, any such claim.
  8. Liability of Customer. Customer shall be liable to Inkblot for the actions or inactions of
    1. Customer itself,
    2. its affiliates, its clients (including Customer’s clients' clients, no matter how remote), and
    3. the employees, officers, and stakeholders of Customer, Customer’s affiliates, and all Customer’s Clients.
    4. in breach of Customer’s obligations set forth in this numbered Section (Work for Customer’s Competitors).
CONFIDENTIALITY AND NON_DISCLOSURE
1. Confidential Information. During the performance of the Services, Customer may have access to confidential information of Inkblot and third parties that may include data, software, codes, technology, logic, techniques, formats, tools, designs, concepts, methods, processes, ideas, functional specifications, business records, pricing, proposals, forecasts, client lists, financial information, algorithms, personal information, trade secrets, technical materials and information, and related documentation ("Confidential Information”). [Double check this against the one online and make sure the one online is broader and more inclusive than this one.]
  1. Inkblot Confidential Information. Notwithstanding the above definition of “Confidential Information” all written and other forms of information disclosed or provided by Inkblot, including but not limited to documents and information owned exclusively by Inkblot, co-owned by Inkblot, or licensed to Inkblot by third parties, are deemed the Confidential Information of Inkblot. All information concerning or related to the know-how, tools and techniques used by Inkblot in performing any Services is deemed Inkblot’s Confidential Information.
  2. Customer Confidential Information. Only those written and other forms of information disclosed or provided to Inkblot that at the time of such disclosure or provision are accompanied by a signed statement explicitly stating that such information is Customer’s or a named Services Beneficiary’s Confidential Information are subject to the herein information protective provisions.
2. Care of Confidential Information. Each party shall use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind, but in no event less than that reasonable degree of care necessary, to protect the other party’s Confidential Information from disclosure with the presumption that such Confidential Information is highly valuable and that its inappropriate use or disclosure would seriously threaten such other party’s viability or its valuation as a business entity.
  1. Security of Inkblot’s Confidential Information. As a part of the Agreement hereunder, Customer shall maintain appropriate administrative, physical, and technical safeguards for the security, confidentiality and integrity of any data or information inputted, edited, authored, generated, managed, or otherwise submitted by Customer or its users for any Services as allowed herein. Such measures and safeguards include, but shall not be limited to, measures for preventing access, use, modification or disclosure of personal and Confidential Information by Inkblot or its employees or agents except (a) for providing Products and Services and prevent or address service or technical problems, (b) to abide by the law or (c) on the basis of Customer's express permit.
3. Non-Disclosure of Inkblot’s Confidential Information. During the term of this Agreement and thereafter, each party agrees not to disclose any Confidential Information to any third party except as permitted by this Agreement and by applicable law.
4. Permission Required For Disclosure. Neither party shall permit any person to disclose any Confidential Information of the other party without prior written permission of that other party.
5. Disclosure To Employees. Subject to the requirements of this paragraph, a party may disclose the other party’s Confidential Information to its employees and contractors. Each party shall ensure that any employees, or any third parties who receive access to the other party’s Confidential Information have a bona fide need for such information in order to fulfil the party’s performance obligations and that any Customer employees or contractors who receive access to Inkblot’s Confidential Information are prohibited by written agreement, executed prior to such access being given, from disclosing the Confidential Information and from using the Confidential Information for their benefit or the benefit of any third party. Customer shall make available to Inkblot, upon request, any such executed agreements with its employees or contractors.
6. Disclosure Responsibility. Customer shall be fully legally responsible for the actions and inactions of every person that received Inkblot Confidential Information:
  1. directly or indirectly from Customer, or
  2. from Inkblot because of such person's direct or indirect relationship to Customer,
  3. as though such actions or inactions had been the Customer’s actions or inactions. Such responsibility will be joint and several with the persons to whom Customer has disclosed Inkblot’s information. Notwithstanding the foregoing, Inkblot may proceed against Customer without making a claim against any other person.
7. Exceptions to Confidentiality. The obligations of confidentiality, safeguarding, non-use, and non-disclosure shall not apply to any item of Confidential Information to the extent the Recipient can establish by sufficient evidence that such item of Confidential Information, prior to its use or disclosure by the Recipient or by any person having acquired such information due to its direct or indirect relationship to the Recipient, had:
  1. become part of the public domain through no fault or omission of Recipient or of such related person;
  2. become known to Recipient without restriction from a source other than the other party without breach of agreement by Recipient or such source, provided that such source is not (a) bound by a confidentiality agreement with the other party or (b) prohibited from transferring the information to Recipient by a contractual, legal or fiduciary obligation;
  3. been approved for the particular use or disclosure in question by way of a written approval of the other party;
  4. been independently developed by Recipient without the use of Confidential Information of the other party; or
  5. been known to Recipient on a non-confidential basis prior to disclosure by the other party to Recipient
  6. The burden of proving that information is not Confidential Information shall be on the party asserting such exclusion.
8. Confidentiality Term. The provisions herein, and in an enforceable NDA if applicable, concerning safeguarding, non-use and non-disclosure of Confidential Information shall remain in effect for a period of 10 years beyond the time that this agreement or any SOW remains otherwise in effect, except as regards a party’s trade secrets. Each party is expressly required to keep safe and not use or disclose the other party’s trade secrets in perpetuity.
9. Confidentiality Breach. A party’s noncompliance with the terms of this Section [Confidential Information] constitutes a material breach of this agreement.
  1. Exception To Breach. Inkblot’s use of information that is acquired from a source other than Customer does not constitute a breach of confidentiality no matter how similar such information may be to Customer Materials provided (i) by Customer or (ii) as a result of the relationship between Customer and a third party.
10. Effect of Confidentiality Breach. Customer acknowledges that a breach by Customer or any Customer Recipient of the non-use or non-disclosure provisions herein is likely to result in indirect and consequential losses to Inkblot. A breach by Customer any Customer Recipient of the non-use or nondisclosure provisions herein will subject Customer and the Customer Recipient to general breach of contract expectation damages and to all special, indirect, consequential and punitive damages
NON-SOLICITATION
1. Non-Solicitation of Inkblot Employees. Customer agrees that during the Service Term hereunder, and for a period of twelve (12) months thereafter, Customer shall not, directly or indirectly, employ, attempt to employ, solicit for employment by others, or inducing or attempting to influence a termination of employment by any of the Inkblot’s employees or independent contractors who work for Inkblot in any capacity.
2. Non-Solicitation of Inkblot Business Relationships. Customer agrees that during the Service Term hereunder, and for a period of twelve (12) months thereafter, Customer shall not, induce or attempt to induce a client, customer, strategic partner, service provider, employee or other person and/or entity related to Inkblot to sever that person’s and/or entity’s relationship with Inkblot.
NO RIGHT TO ADDITIONAL FEATURES:
1. No Right To Additional Support. Customer is not entitled to any upgrades in the support of Services or Deliverables.
2. No Right To Additional Features. Customer is not entitled to any upgrades in enhancements, or features to the Services or Deliverables.
INDEMNITY
1. General Indemnification. Customer shall indemnify, defend and hold harmless all Inkblot Indemnitees against any third party claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and reasonable attorneys’ fees for defending those claims, to the extent such claims arise out of or relate to (a) the direct or indirect application or use of any Products, Product Results, And Product Contents by such third party claimant, by a Services Beneficiary, by Customer, or by a Customer’s client, affiliate, or agent; (b) any negligence or misconduct by Customer or any Customer agent, employee, officer, or stakeholder related to the subject matter of this agreement; or (c) any Customer representations, warranties, or promises to third parties. Inkblot reserves the right the assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which Customer is obliged to provide indemnification hereunder. Customer will cooperate with Inkblot with respect to such defense and settlement
2. No Guarantees. Inkblot does not guarantee any result deriving from usage of the Services or Deliverables.
3. Use At Customer’s Own Risk. Reliance on any information provided by the Services or Deliverables is solely at Customer’s own risk.
4. No Liability For Use. Inkblot shall have no liability whatsoever for any use Customer or any third party make of the Services or Deliverables.
5. Indemnification of All Damages, Losses, Liability, Costs, and Expenses. Customer shall defend, indemnify and hold harmless Inkblot against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys' fees arising in connection with Customer’s use of the Services or Deliverables or Customer’s breach of any provision of this Agreement. Inkblot reserves the right the assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which Customer is obliged to provide indemnification hereunder. Customer will cooperate with Inkblot with respect to such defense and settlement
6. Data Use Indemnification. There may be Projects in which Inkblot handles respondent data that is collected, owned or used by Inkblot’s vendors, Inkblot contractors, Customer, Customer’s vendors, Customer’s contractors, other agents of Customer, or Services Beneficiaries. Customer shall ensure that all such data is maintained, accessed, and transmitted in a secure environment in compliance with relevant data use, data privacy and data protection laws, industry standards and safety specifications. Customer is responsible for ensuring that it, Inkblot, and any third parties with access to data related to any Services are, and are capable of, (i) maintaining, accessing, transmitting, and using such data in the manner required by this paragraph, and (ii) adhering to such industry standards and specifications. Customer shall defend, indemnify and hold Inkblot harmless from and against any and all claims, demands, regulatory proceedings, damages, costs and expenses arising from or related to data collection, data use, data storage, and data transfer by any Services Beneficiary, Inkblot, or by any of Inkblot’s contractors, agents, or vendors.
WARRANTY DISCLAIMER

ACCESS TO THE SERVICES, SERVICE CREATIONS, THE DELIVERABLES AND INFORMATION CONTAINED THEREIN IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INKBLOT DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

INKBLOT DOES NOT AND CANNOT WARRANT THE PERFORMANCE, RESULTS, OR CONTENT OBTAINED BY CUSTOMER IN USING THE SERVICES, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. INKBLOT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, SERVICE CREATIONS OR ANY DELIVERABLES. INKBLOT DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) ANY SERVICE CREATIONS, DELIVERABLES, OR STORED DATA WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY SERVICES, SERVICE CREATIONS, DELIVERABLES, OTHER INFORMATION, OR OTHER MATERIAL ACCESSED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (D) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

INKBLOT DOES NOT CONTROL THE DEVICES OR COMPUTERS OR THE INTERNET OVER WHICH CUSTOMER MAY CHOOSE TO ENTER CONFIDENTIAL OR PERSONAL INFORMATION AND CANNOT, THEREFORE, PREVENT INTERCEPTIONS OR COMPROMISES TO CUSTOMER INFORMATION WHILE IN TRANSIT TO INKBLOT. INKBLOT MAKES NO GUARANTEE AS TO THE SECURITY, INTEGRITY, OR CONFIDENTIALITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE CUSTOMER WHILE PERFORMING THE SERVICES.

LIMITATIONS OF LIABILITY.

IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY OF THE SERVICE CREATIONS OR DELIVERABLES, CUSTOMER AGREES THAT CUSTOMER’S SOLE REMEDY IS TO CEASE USING THE SERVICES. UNDER NO CIRCUMSTANCES SHALL INKBLOT BE LIABLE IN ANY WAY FOR CUSTOMER’S USE OF THE SERVICES, SERVICE CREATIONS OR ANY DELIVERABLES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY SERVICE CREATIONS OR DELIVERABLES, ANY INFRINGEMENT BY ANY CONTENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY SERVICE CREATIONSOR DELIVERABLES.

UNDER NO CIRCUMSTANCES SHALL INKBLOT BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON CUSTOMER INFORMATION HANDLING SYSTEM OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE MAXIMUM AGGREGATE LIABILITY OF INKBLOT FOR ANY AND ALL DAMAGES ARISING IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER TO INKBLOT IN THE THREE (3) MONTHS BEFORE THE LIABILITY IS ALLEGED TO HAVE ARISEN, OR, IF NO AMOUNTS WERE PAID DURING SUCH PERIOD, THE AMOUNT OF $1. THIS LIMITATION WILL APPLY WHETHER THE DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

21. REPRESENTATIONS

1. Not Limited To Engage In This Contract. Customer represents and warrants that it is not limited or prevented by previous agreements, terms and conditions, or in any other way prohibited, from: (i) engaging in this contract, (ii) granting licenses specified herein, or (iii) receiving or using the Products herein . Customer represents and warrants that engaging in this contract, granting such licenses, or receiving or using the Services herein will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties.
2. Authority To Make Agreement. Customer represents and warrants that: (i) it has the full power and authority to make this agreement and grant all the rights granted hereunder.
3. Authority To Provide Confidential Materials. Customer represents and warrants that: (i) it has the full power and authority to provide Inkblot with Customer Materials, including Customer’s Confidential Information.
4. Non Use of Third Party IP. Customer represents and warrants that it will not incorporate into any Customer Materials or otherwise utilize in relation to the Services, any intellectual property owned by a third party, except where such incorporation or utilization has been licensed for such purpose;
5. Violation of Third Party Rights. Customer represents and warrants that it will not violate any proprietary rights of third parties including without limitation trade secrets, patents and copyrights of third parties;
6. Export Controls. Customer shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the Services or Deliverables in violation of any such restrictions, laws or regulations. By accessing or using the Services or Deliverables, Customer is agreeing to the foregoing and Customer is representing and warranting that Customer is not located in, under the control of, or a national or resident of any restricted country or on any such list.
7. Non-Disclosure Of This Agreement. Customer represents and warrants that it will not disclose to any third party, other than its legal and financial counsel, information regarding the terms of this Agreement or any SOW;
8. Not A Substitute For Professional Psychological Services. The Products, Product Results, and Product Content are provided hereunder solely to assist Customer in gathering related to psychological variables/constructs. This is for informational purposes only. The Products, Product Results or Products Content are not intended to be a substitute for professional psychological assessment, diagnosis, or treatment.

22. BREACH OF TERMS:

1. No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by Inkblot of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.
2. Equitable Remedies. Because the Services are personal and unique and because Customer will have access to Confidential Information and intellectual Property of Inkblot, Inkblot will have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without having to post a bond or other consideration, in addition to all other remedies that Inkblot may have for a breach of this Agreement at law or otherwise.
3. Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

23. MISCELLANEOUS

1. Independent Contractor Status. Inkblot is an independent contractor and is not an agent, employee, or partner of Customer. Neither party has any authority to enter into any contract, or to incur any liability on behalf of the other party. Customer is free to contract with any third party for services similar to those provided by Inkblot. Inkblot is free to offer and to provide any services to any third party, including without limitation any of Customer’s business competitors, no matter how similar such services (or the deliverables related thereto) may be to the Services provided (and the Deliverables contracted for) under an SOW. Customer is expressly prohibited from interfering with any of Inkblot’s business relationships with any third parties.
2. Force Majeure. Unless the failure to perform is the failure to pay the amounts due pursuant to a Statement of Work, neither party will be liable for any failure or delay in performance due in whole or in part to an act of nature or any cause beyond the reasonable control of the party. The affected party shall promptly notify the unaffected party of such force majeure event and the estimated duration thereof. The delay or failure in performance excused by this paragraph shall only be excused for so long as the cause of such excusable delay or failure subsists. The parties shall resume the performance of their respective undertakings forthwith upon cessation of the cause of such excusable delay or failure.
3. Notices. All legal notices and demands of any kind or nature which either party may be required or desire to serve upon the other in connection with this agreement shall be in writing and may be served personally, by email, by certified mail, or by commercial overnight delivery (e.g., Federal Express), with constructive receipt deemed to have occurred one calendar day after the mailing, sending or transmitting of such notice, to the persons executing this agreement at the addresses set forth in opening paragraph above or at such email or physical addresses of which the sender has constructive or actual knowledge.
4. Other Writings. Wherever this agreement or any SOW makes reference to a written approval, written consent, written authorization or written permission, a formally signed document is not essential to establishing such approval, consent, authorization or permission. Emailed approval, consent, authorization or permission from a person reasonably believed to represent a party and to have authority to grant such approval, consent, authorization or permission is sufficient evidence of same. Wherever this agreement refers to written notice or notification, such notice or notification must be made by a formal writing from a signer hereof or from an officer of a party to the other signer hereof or an officer of such other party unless the context of the notice or notification provision provides otherwise. Except as to matters referencing material breach or legal action, such formal writing may be delivered or transmitted in any normal manner including without limitation, email attachment.
5. Ambiguity Resolution. Wherever it possible that the terms of this agreement may be, or may seem, unclear as to which party owns the rights and interest in and to any intellectual or other property, such rights and interests are deemed to be held exclusively by Inkblot.
6. Negotiated Agreement. This agreement is the product of negotiation between the parties, and no provision herein may be construed against either party for any reason.
7. Rules of Construction as to “Customer.” If the Customer signed hereto is for any purpose an agent or intermediary party directly or indirectly between Inkblot and the actual Services Beneficiary, then:
  1. If “Customer” is used herein in a context that indicates a promise, requirement or obligation of Customer to Inkblot, then (1) Customer signed hereto is fully responsible to Inkblot for fulfilling such promise, requirement, or obligation even though such promise, requirement or obligation may be carried out by the Services Beneficiary, any other intermediary, or any third party, (2) Customer represents and warrants to Inkblot that it has full agency authority to bind the Services Beneficiary to such promises, requirements, and obligations;
  2. If Customer is used herein in a context that indicates that Customer has or acquires certain rights and interests, the Services Beneficiary is the person that actually acquires such rights and interests, and the Customer named in this agreement will not have such rights and interests.
8. Assignment. Except that either party may assign this agreement without consent in connection with a merger, change of control, or sale of all or substantially all of such party’s assets, neither party may assign or otherwise transfer this agreement without the prior written consent of the other party. Any assignment or transfer in violation of the foregoing will be null and void.
9. Successors and Assigns. This agreement is binding upon and inures to the benefit of the parties and their successors and permitted assigns. The term “successor” has its ordinary meaning and also includes without limitation, a resultant business entity from a party’s entity conversion or relocation.
10. Nonexclusive Relationship. Nothing in this agreement may be construed as to create an exclusive relationship between Inkblot and Customer beyond those terms and conditions explicitly agreed to in this agreement. Notwithstanding anything to the contrary in this agreement or any agreement between the parties, Inkblot and its affiliates shall at all times be free to:
  1. perform same or substantially similar services for,
  2. receive materials of the same or substantially similar nature or composition as Customer’s Customer Materials from,
  3. create deliverables of the same or substantially similar nature or composition as Deliverables created for Customer,
  4. create Services Creations of the same or substantially similar nature or composition as Services Creations created in the course of performing Services for Customer, and
  5. utilize materials of the same or substantially similar nature or composition as Customer’s Customer Materials for
  6. other clients of Inkblot, including clients in same or substantially similar businesses to those engaged in by Customer; and Customer shall not interfere with Inkblot’s right to do so.
11. Merger. As to its subject matter, this agreement signed by both parties constitutes a final written expression of all the terms of agreement between the parties and is a complete and exclusive statement of those terms, superseding all prior service agreements between the parties whether oral or written. When taken together with a specific Statement of Work including its Change Orders, modifications and addenda, that Statement of Work and this agreement, deemed incorporated therein, constitute a final written expression of all the terms of agreement between the parties as applicable to that Statement of Work and is a complete and exclusive statement of those terms.
12. Amendments. We may make changes to this Agreement on a going-forward basis at any time in our sole discretion. You acknowledge and agree that your access to and use of the Products and Services after we publicly post or otherwise make available to you a modified version of this Agreement will constitute your acceptance of the modified Agreement. Except as expressly provided in this section, this Agreement may be amended only by a written agreement signed by an authorized representative of each party to this Agreement. Disputes arising under or relating to this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
13. Waiver. No action or course of conduct shall constitute a waiver of any of the terms and conditions of this agreement unless such waiver is granted in writing. A waiver of any of the terms and conditions of this agreement on one occasion shall not constitute a waiver of any other terms and conditions of this agreement, or of the waived terms and conditions on any other occasion.
14. Survival. Termination of this agreement does not affect the coming into force of, or continuance in force of, any provisions which are expressly, or by implication, intended to come into or continue in force after such termination, including but not limited to any rights regarding intellectual property.
15. Remedies. In addition to any other available rights and remedies, either party may enforce this agreement by means of equitable relief (including, but not limited to, injunctive relief) and the parties hereby waive any objection that they may have to the application to a court of competent jurisdiction for equitable remedies. All rights and remedies provided in this agreement or otherwise are cumulative and, other than as expressly agreed to herein for particular circumstances, are not exclusive of any other rights or remedies that may be available, whether provided by law, equity, statute, or in any other agreement between the parties.
16. Choice of Law, Forum. This agreement is governed, construed, and administered according to the laws of the State of New Hampshire. No effect is given to any choice-of-law or conflict-of-law provision or rule (whether of the State of New Hampshire or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New Hampshire. Any cause of action arising out of or related to this agreement is deemed to have arisen from a transaction of business in the State of New Hampshire. Any person bringing any action arising out of or related to this agreement to which Inkblot is, or may become, a party shall bring such action only in a court located in the State of New Hampshire. Venue and jurisdiction for any dispute, including, but not limited to, enforcement of this agreement, will be limited to the New Hampshire court system. The parties hereto hereby irrevocably consent to submit to the jurisdiction and venue of those courts (and their appellate courts) for all purposes related to this agreement. Each party irrevocably waives any objection that it may have now or later to the venue of any of the designated courts, including, but not limited to, an inconvenient-forum petition.
17. Severability. The invalidity, in whole or in part, of any term of this agreement does not affect the validity of the remainder of the agreement. If any term of this agreement is determined to be invalid or unenforceable, it shall be interpreted or modified in order to maintain its validity.
18. Headings. The headings and subheadings contained in this agreement are for purposes of convenience and ease of reference only. They have no legal significance and do not limit the scope of any following clause.
19. Counterparts; Execution and Transmittal by Electronic Means. This agreement and any applicable amendment hereto (a) may be executed in counterparts, each of which is deemed an original, but all of which together will constitute one and the same instrument, and (b) may be executed by electronic signature. Either party may also sign by hand and transmit its signed counterpart of this agreement a in its entirety to the other party in portable document format (“.pdf”).
20. Additional Terms Applicable to the Products and Services. Some features of our Products and Services may have additional terms, policies or agreements that apply (“Content Specific Terms” or “Content Specific Policies”). You agree to comply fully with this Master Services Agreement and any Content Specific Terms. All Content Specific Terms are incorporated by this reference in their entirety into this Master Services Agreement and this Master Services Agreement with all Content Specific Terms incorporated shall be referred to herein as the “Agreement”. In the event of a conflict or inconsistency between this Master Services Agreement and any Content Specific Terms, the Content Specific Terms control.
  1. Content Specific Terms:
    1. Data Use Policy
    2. Product Terms of Use
21. Precedence: As to any provision or provisions of this agreement that conflict, or potentially conflict, with a provision or provisions of any prior oral or written agreement by the parties, the provision or provisions as expressed in this agreement supersede those of such prior agreement.

24. SIGNATURE STATEMENT

1. By signing this Agreement, Customer agrees that:
  1. Customer has carefully read this Agreement;
  2. Customer has read all contemporaneously initiated SOW’s
  3. If English is not Customer’s primary language, then Customer has had an attorney fluent in English and Customer’s primary language fully advise Customer;
  4. Customer has (a) had adequate opportunity to review the terms of this Agreement with legal counsel of Customers own choosing, or (b) have voluntarily determined to sign without seeking advice of counsel;
  5. Customer knows and understand the contents of the Agreement;
  6. Customer signs the Agreement as their own free act;
  7. he or she has authority to sign this agreement and to bind the represented party to this agreement, and
  8. all necessary corporate and legal action to authorize such signing has been obtained.

Master Services Agreement

One tool for all your metrics