Effective Date: August 1, 2016.
The FluidReview service (“FluidReview” or the “Service”) is provided subject to these Terms of Service (“Terms”) and any SurveyMonkey order form or similar SurveyMonkey document under which Customer purchased the Service (“Order Form”).
Capitalized but otherwise undefined terms in these Terms have the meanings given to them in the Order Form.
1. FluidReview Configuration
1.1 Configuration Services. If Customer has ordered a new FluidReview subscription, SurveyMonkey will also provide services to configure that subscription for Customer (“Configuration Services”). Unless a Statement of Work (“SOW”) for the Configuration Services is agreed between the parties in a separate document signed by the parties or on the Order Form, Configuration Services will be provided in accordance with Sections 2 to 4.
1.2 Changes to SOWs. Customer may submit to SurveyMonkey written requests to change the scope of Project Services described in a SOW (each such request, a “Change Order Request”). SurveyMonkey may consider such Change Order Request, but SurveyMonkey has no obligation to do so. If SurveyMonkey elects to consider such a Change Order Request, then SurveyMonkey will promptly notify Customer if SurveyMonkey believes that the Change Order Request requires an adjustment to the fees or to other parts of the SOW for the performance of the Project Services. In such event, the parties will negotiate in good faith a mutually acceptable adjustment to the SOW. SurveyMonkey will continue to perform Project Services pursuant to the existing SOW and will have no obligation to perform any Change Order Request unless and until the parties have agreed in writing to adjust the SOW.
1.3 Expenses. Unless otherwise specified in an applicable SOW, Customer will reimburse SurveyMonkey for all reasonable expenses incurred and invoiced by SurveyMonkey while performing the Configuration Services, including without limitation, transportation services, lodging, meal and out-of-pocket expenses related to the provision of the Configuration Services.
2. Configuration Services – Responsibilities
2.1 Customer Responsibilities. Customer acknowledges that providing SurveyMonkey with timely access to Customer’s facilities, equipment, assistance, cooperation, data, information and materials from Customer’s agents and employees (“Cooperation”) is essential to the performance of the Configuration Services, and that SurveyMonkey will not be liable for any deficiency or delay in performing the Configuration Services if such deficiency or delay results from Customer’s failure to provide full Cooperation as required hereunder. Cooperation includes, without limitation:
(a) designating a project manager or technical lead to liaise with SurveyMonkey during the course of receiving the Configuration Services;
(b) allocating and engaging additional resources as may be required to assist SurveyMonkey in performing the Configuration Services; and
(c) making available to SurveyMonkey any data, information and any other materials required by SurveyMonkey to perform the Configuration Services, such as any data, information or materials specifically identified in these Terms (collectively, “Customer Materials”). Customer will be responsible for ensuring that all Customer Materials are accurate and complete.
2.2 SurveyMonkey Obligations. If the Configuration Services require SurveyMonkey to provide those Configuration Services on Customer’s premises, SurveyMonkey’s employees and subcontractors will comply with all reasonable security practices and procedures generally prescribed by Customer and provided in writing to SurveyMonkey in advance. SurveyMonkey employees and subcontractors will not be required to sign any waivers, releases or any other documents to gain access to Customer’s premises in connection with the performance of the Configuration Services and all such documents will be invalid and have no effect.
2.3 Primary Contacts. Each party will designate in each SOW one or more individuals who will be the primary point of contact between the parties for all matters relating to the Configuration Services to be performed thereunder. A party may designate a new primary point of contact by written notice to the other party.
2.4 Configuration Services Warranty. SurveyMonkey warrants that the Configuration Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of 30 days from the completion of any Configuration Services. As Customer’s sole and exclusive remedy and SurveyMonkey’s entire liability for any breach of the foregoing warranty, SurveyMonkey will, at its sole option and expense, either promptly re-perform any Configuration Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Configuration Services.
3. Configuration Services – IP Ownership
3.1 Rights to Configuration Services Deliverables. The parties acknowledge that any Configuration Services provided under these Terms primarily involve the configuration of Customer’s subscription to FluidReview and not the creation of any Deliverables. If any Deliverables are created or developed by SurveyMonkey in connection with providing the Configuration Services, each such Deliverable will be owned by SurveyMonkey and the Customer will not obtain any rights, title or interest in that Deliverable unless any SOW under which it was created or developed expressly designates that Deliverable as a “Customer-owned Deliverable” or to be owned by the Customer (“Customer-owned Deliverable”). The Customer will not obtain any rights, title or interest in any SurveyMonkey Background IP, whether or not it is incorporated into, or used in connection with creating or developing, a Deliverable or Customer-owned Deliverable. SurveyMonkey and its licensors retain ownership to the Deliverables created or developed by SurveyMonkey in connection with providing the Configuration Services and the SurveyMonkey Background IP (together, the “SurveyMonkey Materials”).
3.2 Ownership of Customer-owned Deliverables. Subject to SurveyMonkey’s rights in the SurveyMonkey Materials, SurveyMonkey agrees that the Customer will own (and SurveyMonkey hereby assigns to the Customer) all rights, title, and interest in the Customer-owned Deliverables, including the Intellectual Property Rights subsisting in those Customer-owned Deliverables. The Customer hereby grants to SurveyMonkey and its contractors, a worldwide, non-exclusive, non-transferable, non-sublicensable, and revocable (upon breach) license to use the Customer-owned Deliverables only to the extent required for SurveyMonkey to provide the Services and Configuration Services to the Customer.
4. Configuration Services – Description
4.1 Scope. Customer has engaged SurveyMonkey to configure a FluidReview site (“Site”) for one or more programs as specified in the Agreement (each a “Program”).
4.2 Project and Launch Management. SurveyMonkey will assign an onboarding specialist to oversee the delivery of the Configuration Services. The goal of the onboarding specialist is to facilitate a guided, controlled, coordinated, and informed engagement. The onboarding specialist will:
(a) provide a single point of contact for Customer inquiries throughout the engagement;
(b) coordinate and manage activities owned by various internal SurveyMonkey groups throughout the engagement;
(c) schedule and facilitate a project initiation session;
(d) provide a weekly project status update to Customer;
(e) identify and communicate any project risks along with mitigation strategies to Customer;
(f) provide primary Customer contacts with ad-hoc consulting/training related to FluidReview configuration options;
(g) schedule and facilitate a project closeout session and transition to the support organization.
4.3 Requirements Phase.
(a) SurveyMonkey will work with Customer to document the required Program workflows.
(b) Based on Customer-supplied materials and a requirements review session, SurveyMonkey will produce a diagram of the desired workflow (“Workflow Diagram”). The Workflow Diagram will serve as the basis for the configuration and the functional and user-acceptance testing of FluidReview.
(c) The onboarding specialist will produce an asset catalog which will list (to a reasonable degree of granularity and specificity) each element that requires input from Customer (“Assets”). Examples of Assets are on-screen text, email subject and body content, and forms. Customer is responsible for providing all listed Assets.
(d) The onboarding specialist will do one review of the Workflow Diagram and the Assets with Customer and will make any adjustments reasonably requested by Customer. After any such adjustments, the Workflow Diagram will be considered final. Any future changes will require a Change Order Request.
(e) If during the development of the Workflow Diagram it is determined that the Site configuration, as requested, will exceed any of the FluidReview package limits as defined in the Agreement (or relevant order form under the Agreement), the project may be put on hold while the parties negotiate in good faith to resolve the issue. It is expected that such resolution would involve either adjusting the terms of the Agreement or reducing the scope of the implementation to conform to the Agreement.
4.4 Configuration and Setup. After the Workflow Diagram is finalized and Customer has provided the Assets, the onboarding specialist will configure the Site and perform functional testing.
4.5 User Acceptance Testing. After the Site is configured and tested, SurveyMonkey will provide Site access for Customer to review the Site and conduct user acceptance testing.
(a) Customer may report any issues through the designated issue tracking system. SurveyMonkey will provide access and reasonable training to Customer’s staff who will be testing and reporting issues.
(b) SurveyMonkey and Customer will mutually review, investigate, and prioritize reported issues.
(c) SurveyMonkey will correct any deviations in the Site from what is documented in the final Workflow Diagram.
(d) Customer is responsible for making any adjustments to elements that were created from the Assets. For clarity, such elements are intentionally implemented in a way that allows Customer to maintain and update them at any point without ongoing support from SurveyMonkey. Adjustments covered may include, without limitation, typographical errors replicated from the original Asset, changes to formatting (bold, italics, font, color, etc.), new or adjusted email language, adding or removing questions from forms, changing pick-list values in a form question, or changing question labels. SurveyMonkey will provide reasonable guidance for any such adjustment which may include providing documentation or walking Customer through the solution using an online screen-sharing technology.
4.6 Assumptions, Acknowledgements and Exclusions. SurveyMonkey’s obligations under these terms are subject to the following assumptions:
(a) No custom functionality is being delivered under the scope of the SOW. All delivery under the SOW will make use solely of the Service’s existing features.
(b) Task estimates in the SOW include time related to project management, software configuration, quality assurance, and documentation activities.
(c) Unless otherwise specified above as a specific item in scope, Customer is responsible for all training of reviewers, applicants, and other users of the Site.
(d) Customer acknowledges that any changes to the configuration by Customer after the completion of the Configuration Services delivered under the SOW may impact the functionality and/or performance of the Site and Customer assumes responsibility for any such changes.
4.7 Project Timeline.
(a) The start date of Configuration Services will be determined based upon the availability of resources at the time the Order Form is executed.
(b) The project timeline assumes that the project scope outlined above is accurate, and does not reflect any delays in receiving information from Customer or pre-launch activities (such as Asset delivery or user acceptance testing).
(c) All purchased hours and rights expire 3 months from the effective date of the Order Form. Unused hours and rights have no residual value and Customer will not be entitled to any refund for them.
(d) Renewing customers may receive up to 5 hours of Configuration Services to make modifications to the Customer’s Site prior to or within three months of the end of the initial term of a new FluidReview subscription (“Renewal Configuration Services”). All Renewal Configuration Services expire 3 months from the end of such initial term. Renewal Configuration Services have no monetary value and Customer will not be entitled to a refund if it receives less than 5 hours of such Renewal Configuration Services.
4.8 Change Management.The fees and scope set forth in the Agreement reflect both parties’ best knowledge at the time the Order Form was executed; however, both parties recognize that many factors may influence the project scope. SurveyMonkey will use commercially reasonable measures to deliver Configuration Services as described. If at any point SurveyMonkey anticipates a material change in the scope of the Configuration Services, SurveyMonkey will notify Customer as soon as reasonably possible. Upon receipt of such notice, the parties shall negotiate a Change Order Request in good faith.