This Survey Services Agreement (the “Agreement”) is entered into by and between 7-Eleven, Inc. (“Provider”) and the entity identified as the Client in the Order Form (“Client”). By executing the Order Form, Client and Provider enter into and agree to be bound by this Agreement; this Agreement is expressly incorporated into and forms part of the Order Form. For clarity, references to “this Agreement” refer to both this Agreement and the Order Form.
This Agreement sets forth the terms and conditions pursuant to which Provider will conduct surveys and deliver aggregated reports of the results of such surveys to Client. In the event of any conflict between the Order Form and this Agreement, the Order Form controls; provided that any forms or terms and conditions provided by Client in connection with the Order Form are not accepted by Provider and are deemed void and of no effect.
Client agrees Provider will perform the Services and prepare the Deliverables in accordance with the Order Form. Unless otherwise stated in an Order Form, Client agrees the Services shall consist of the following:
(a) Working with Client, on the basis of client-provided drafts, to finalize (a) a mutually agreed survey questionnaire, and (b) mutually agreed format(s) and analytic parameters for, and content to be included in, Provider’s report of the result of the survey (collectively, the “Deliverable(s)”);
(b) Assembling and/or procuring the survey panel, including by asking such screening questions that Provider deems required or appropriate in its sole discretion, and conducting the survey;
(c) Compiling the results of the survey into the Deliverable(s).
Client shall:
(a) Provide to Provider comprehensive description(s) of Client’s objective(s) for the survey;
(b) Provide the initial draft(s) of the questionnaire(s) Client wishes Provider to use for surveys;
(c) Provide requested format(s), analytic parameter(s), and content to be included the Deliverables;
(d) Actively cooperate with and assist Provider in drafting and finalizing the survey questionnaire;
(e) Provide all information requested by Provider, and answer all questions or requests posed by Provider, promptly upon request;
(f) Provide any stimuli needed to execute the study.
If Client fails to comply with any of the foregoing, Provider shall be entitled to (a) not move forward with the survey, or, at Provider’s election, (b) make an independent decision on how to proceed and move forward without Client’s input; in no case will Provider be liable to Client.
All aspects of the survey objectives of the survey must be mutually agreed between Provider and Client, including (without limitation) the survey questionnaire, screening questions, and the format and content to be included in the Deliverable(s). Notwithstanding anything in this Agreement or any Order Form, Provider is not obligated to accept any aspect of any survey requested or proposed by Client, including (without limitation) any questionnaire(s), question(s), screening question(s), or deliverable(s) proposed or requested by Client, and Provider shall have no liability to Client for any refusal to accept a request or proposal by Client.
The Services will be performed remotely and/or virtually. If Client requests Provider to provide Services at a specific location, Provider agrees to pay all reasonable expenses incurred by Provider therefor.
If Client wishes to change any aspect of the Services (such as, without limitation, adding or changing survey questions or changing the content to be included in the Deliverable(s)), Client and Provider will mutually agree on the scope of the change, timetable for completion, and additional fees or cost.
The date for delivery of the Deliverables shall be specified in the Order Form. Unless otherwise specified in the Order Form, the date of delivery is an estimate only. Client acknowledges that conducting the Survey implicates a number of factors outside of Provider’s control, and that the Deliverables may be delivered earlier or later than the date in the Order Form.
Client shall promptly review the Deliverables and shall notify Provider within five (5) business days of any issues; if no such notice is made by Client, the Deliverables shall be deemed accepted as of the first day after such five (5)-day period. If Client provides notice of an issue(s), Provider will inform Client whether addressing the issue will incur additional cost, and the parties will then mutually agree on the costs and timeframe for correction; if no agreement is reached, the Deliverables are deemed accepted.
The fees stated in the Order Form shall cover the Services performed by Provider under that Order Form (the “Fees”). Unless otherwise stated in the Order Form, Fees are due as follows: fifty percent (50%) of the Fees stated in the Order Form upon execution of the Order Form, and the remaining fifty percent (50%) of Fees due upon delivery of the Deliverables. Notwithstanding the foregoing, if Provider reasonably anticipates incurring costs in addition to the Fees stated on the Order Form which were not reasonably foreseeable despite due care by Provider at the time that the Services were commissioned, such additional costs will be agreed upon by the parties and will be charged separately by Provider, provided Client is informed of such costs promptly by Provider and such costs are separately itemized for Client. Such costs will be invoiced to Client and must be paid within thirty (30) days of the invoice.
Provider’s fees are exclusive of sales, use, excise, value-added, services, consumption, withholding and other taxes (“Taxes”). Client will be responsible for Taxes that are assessed against either party, on the provision of the Services, any goods or services received by Client, its affiliates or subcontractors, or the fees paid for such goods or services.
Provider provides Deliverables exclusively in de-identified and/or aggregated form. Client agrees it will not attempt to identify any person using the Deliverables and/or the information contained therein, including any person(s) who may have participated in the Panel or the Survey. In addition to the restrictions on disclosure of Deliverables set forth in this Agreement, Client agrees it shall take reasonable measures to ensure that the information in Deliverables cannot be associated with any consumer or household, and, if required by law, shall publicly commit to maintain such information in de-identified and/or aggregated form and not to attempt to reidentify such information.
Provider owns all right, title, and interest (including intellectual property rights) in and to any and all techniques, methodologies, models or systems, research designs, methods of processing questioning, system of analysis, and computer programs developed and used in connection with the Services, and in no event shall Client obtain or receive any right, title or license in or to any of the foregoing. Provider owns all right, title, and interest, including intellectual property rights, in and to all the Deliverables and any other information, data, or materials relating thereto, and any information, data, or materials derived therefrom. Subject to Client’s compliance with this Agreement, Provider grants Client a limited, non-transferable, non-sublicensable license to use the Deliverables exclusively for its internal business purposes and at all times in accordance with applicable law. Without limiting the foregoing, Client acknowledges that Provider, in its sole discretion, may include with or in connection with Deliverables audiovisual or multimedia material, such as photographs, likenesses, audio recordings, video recordings, or similar materials that relate to the survey(s) conducted hereunder; Client expressly agrees that such materials shall be considered part of the Deliverables and are subject to the same license and restrictions granted in this Section 3.2. For clarity, Client’s license does not include a right to do the following, and Client covenants it shall not:
(a) use the Deliverables (1) for the purpose of supporting litigation, (2) for supporting comparative advertising claims, (3) for resale or syndication, or (4) for distribution to any media outlet in support of external marketing, advertising, promotional, publicity, or public relations efforts, including advertisements, marketing campaigns, social media posts or content, articles, interviews, press releases or events.
(b) disclose the Deliverables to the public or any third party (including (without limitation) by posting any Deliverable or information or materials from any Deliverable on social media), nor permit any third party to acquire, obtain, disclose, circulate, or refer to any Deliverable or any information or materials therefrom, whether in whole or in part, without Provider’s prior written consent;
(c) identify or contact, attempt to identify or contact, or permit any other person to identify or contact any individual who is, and/or whose image, voice, likeness, or any other aspect is depicted, portrayed, or contained in Deliverables;
(d) use or disclose the Deliverables in any way that violates applicable law.
All rights not expressly granted herein are reserved.
Client agrees that use or disclosure of the Deliverables in violation of this Section 3 shall constitute a material breach of this Agreement.
Client agrees that Provider may use subcontractors to perform or assist Provider’s performance of the Services. Provider will be responsible for any breach of this Agreement by a subcontractor.
This Agreement shall apply during the term specified in Order Form or, if no such Term is specified, until the Deliverables have been accepted by Client (the “Term”), unless duly terminated in accordance with this Section 5.
Either party may Terminate the Order Form and this Agreement if the other party materially breaches the Order Form or this Agreement, including failure to make payment of invoice when due, and fails to cure the breach within ten (10) days after receiving written notice to do so.
Following expiration or termination of this Agreement for any reason, Client may continue to use the Deliverable(s) subject at all times to continued compliance with this Agreement; provided, however, that if Provider terminates this Agreement due to Client’s material breach, or if Client breaches this Agreement at any time after expiration and/or termination of this Agreement, the license granted to Client under Section 3.2 shall immediately terminate and (i) Client will have no right to continue using the Deliverable(s), and (ii) upon Provider’s request, Client shall return the Deliverables to Provider or irretrievably destroy the Deliverables, providing certification to Provider thereof, and take any other action requested by Provider relating to the Deliverables (such as, for example, by removing portions of Deliverables from social media, terminating advertisements that contain materials from Deliverables, or other such actions as may be requested by Provider).
THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL PRODUCE ANY SPECIFIC RESULTS, ACCURATELY REPRESENT CONSUMER SENTIMENT OR ANY OTHER MATTER, OR MEET COMPANY’S NEEDS OR EXPECTATIONS.
IN NO EVENT WILL PROVIDER, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, LOSS OF REVENUE OR PROFITS, COST TO PROCURE SUBSTITUTE GOODS OR SERVICES OR BUSINESS INTERRUPTIONS) REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, STATUTE, TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, IRRESPECTIVE OF WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL PROVIDER’S LIABILITY TO CLIENT ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES STATED IN THE ORDER FORM UNDER WHICH THE SERVICES ARE PROVIDED.
Client shall defend, indemnify, and hold harmless Provider, its affiliates, and the directors, officers, employees, and agents of each, from and against any and all losses, damages, fees, judgments, costs and expenses (including attorneys’ fees) which Provider may suffer or incur as the result of, or arising out of, a claim, suit or demand by a third party arising out of or in connection with breach of the Order Form or this Agreement by Client or violation of applicable law relating to the Services.
The following Sections and subsections will survive the termination of this Agreement: Section 3 (Deliverables; Ownership; Restrictions on Use); Section 5.3 (Effects of Termination); Section 6 (Disclaimer of Warranties); Section 7 (Limitation of Liability); Section 8 (Indemnity); and any other provisions of this Agreement or a SOW that by reasonable interpretation are intended by the parties to survive the termination or expiration of this Agreement.
This Agreement, including the Order Form, is the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings and arrangements, whether oral or written, relating to that subject matter.
This Agreement may be amended or supplemented only by a writing that refers to this Agreement and that is signed by both parties.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. All waivers must be in writing and signed by the party granting the waiver. The waiver by a party of any of its rights or remedies in a particular instance will not operate as a waiver of any subsequent event or breach by the other party.
Client agrees that, in the event this Agreement is breached, Provider’s remedies at law (including monetary damages) will be inadequate; the parties therefore agree that Provider shall be entitled to obtain equitable relief in claims or disputes arising from or relating to this Agreement.
If any provision of this Agreement is deemed invalid, illegal or unenforceable, that provision will be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent of the invalid provision. The remainder of this Agreement will remain valid and enforceable in accordance with its terms.
Except for Client’s obligation to pay Fees and Taxes and to comply with Section 3.2 hereof, neither party will be liable for or will be considered to be in breach of this Agreement due to a delay or failure to perform as required by this Agreement as a result of any cause or event that is beyond such party’s reasonable control (a “Force Majeure Event”). Force Majeure Events include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorist acts, earthquake, hurricane, pandemics, epidemics, fires and explosions.
Client may not assign this Agreement without Provider’s prior written consent, and any purported assignment in violation hereof is void.
Client acknowledges and agrees that Provider is engaged solely as an independent contractor and, without limitation, is not acting as an agent or fiduciary of Client or any of its affiliates or representatives. Nothing in this Agreement will be construed to create a partnership, joint venture, agency relationship or other joint enterprise between Client and Provider.
Nothing in this Agreement is intended to confer upon any person other than the parties any rights, benefits, or remedies under this Agreement.
This Agreement, and all matters arising out of or relating to this Agreement, will be governed by and construed under the laws of the State of Texas, without regard to its conflicts of laws rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
The laws of the state of Texas govern all matters arising out of this Agreement, excluding rules of conflicts of law that would result in the choice of another jurisdiction’s laws. The parties hereby irrevocably consent to the jurisdiction of the courts in Dallas County, Texas with respect to all disputes arising out of or relating to this Agreement.