Terms & Conditions

TERMS AND CONDITIONS

AGREEMENT TO LEASE BUSINESS SURVEY EQUIPMENT AND SERVICES

These TERMS AND CONDITIONS are between the Client as identified in the executed AGREEMENT TO LEASE BUSINESS SURVEY EQUIPMENT AND SERVICES and Big Mouth Survey, LLC (“Big Mouth Survey”or “BMS”), and is effective simultaneous with the AGREEMENT TO LEASE BUSINESS SURVEY EQUIPMENT AND SERVICES.The TERMS AND CONDITIONS and the AGREEMENT FOR BUSINESS SURVEY EQUIPMENT AND SERVICES are collectively called the “BMS USER AGREEMENT” or the “Agreements.”

I.ABOUT THE AGREEMENTS, BMS EQUIPMENT AND SERVICES, AND CLIENT RIGHTS

  1. Big Mouth Survey Equipment and Services will be leased to Client (“you” or “your”) on the terms and conditions set forth in the Agreements and any applicable tariffs, service guides, posted policies and procedures, by an operating subsidiary or affiliate of Big Mouth Survey, LLC providing such service (hereinafter “we,” “us” or “our”). For purposes of the Agreements, “affiliate” means any entity that controls, is controlled by or is under common control with Big Mouth Survey, LLC. Services may include, but are not limited to, surveys and other opinion gathering services (“Kiosks”), Big Mouth Survey Software service (“Software”), Big Mouth Survey Equipment (“Equipment”) and other such services as Big Mouth Survey may determine are ancillary to Kiosk, Software or Equipment (each a “Service” and collectively the “Services”).
  2. Client may not modify this Agreement by making any typed, handwritten, or any other changes for any purpose. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 13 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES. THE ARBITRATION PROVISION REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

II.TERM AND TERMINATION GENERALLY

  1. Unless terminated earlier in accordance with Section 2.below, the initial term of the Agreements will commence on the Effective Date and Terminate twelve (12) months thereafter. The Agreements shall automatically renew for successive one (1) year terms unless either party Provides the other with written notification of termination at least thirty (30) days prior to expiration of the then-current term.
  2. Either party may terminate the Agreements at any time if the other party: (i) fails to cure any material breach of the Agreements within thirty (30) days after written notice of such breach or (ii) ceases operation without a successor. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under the Agreements, by law, or otherwise. Article III, Sections 1-16 will survive expiration or termination of theAgreements.

III.GENERAL TERMS AND CONDITIONS

  1. ACCEPTANCE OF THIS AGREEMENT. If you use or otherwise indicate your acceptance of the Services, you have accepted this Agreement and agree to be bound by its terms.
  2. CHARGES AND BILLINGS
    1. Charges, Fees, and Taxes You Must Pay. You agree to pay all charges associated with the Services as indicated on the AGREEMENT FOR BUSINESS SURVEY EQUIPMENT AND SERVICES, including, but not limited to, charges for installation, service calls, monthly service, Big Mouth Survey Equipment (as defined below), purchases or rentals or other services, applicable federal, state, and local taxes and fees (however designated), fees to recoup any municipal, state and federal government fees or assessments on us, permitted fees and cost recovery charges, and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Services. YOU WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES AND TAXES, WHETHER IMPOSED ON YOU OR US, THAT BECOME APPLICABLE RETROACTIVELY. We will provide you with notice of applicable pricing contemporaneous with your order and/or activation, including information regarding standard pricing applicable at the end of a promotion. We will provide you with notice of any change in our standard prices or fees or new prices or fees, unless the change in price or new fee is related to a change in governmental or quasi-governmental taxes, fees, or assessments, in which case we may elect not to provide notice except where required by applicable law.
    2. How We Will Bill You. Unless you are subject to a minimum term, Services are provided to you on a year-to-year basis. You will be billed monthly, in advance, for recurring Service charges, equipment charges, and fees. YOU MUST PAY THE FIRST MONTH’S SERVICE CHARGES, Big Mouth Survey EQUIPMENT CHARGES, DEPOSITS, ACTIVATION FEES AND INSTALLATION CHARGES ON OR BEFORE THE DAY WE INSTALL ANY SERVICES. You may be billed for some Services individually after they have been provided to you; these may include, but are not limited to, charges for additional Software, Kiosks, Equipment ,etc. If you receive Services under a promotion, after the promotional period ends, regular charges for the Services will apply. We do not waive our rights to collect the full balance owed to us by accepting partial payment. We will apply the partial payment to outstanding charges in amounts and in the order we determine in our sole discretion.
    3. For Printing. If you pay a flat monthly fee for your Printing plan, that fee may not cover certain types of Prints. You will be billed for these excluded prints on an individual basis. See http://www.BigMouthSurvey.com for information on printing charges and the timing of delivery. If your usage charges for Printing exceed typical business usage charges, we may: (i) require you to make advance payments for Printing, which we may offset against any unpaid balance on your account; (ii) establish a credit limit for usage charges for Printing and/or features; and/or (iii) restrict Printing or features. If you exceed your credit limit, we reserve the right to suspend Printing and require payment for usage charges assessed to your account.
    4. Third-Party Charges That Are Your Responsibility. You may incur charges with third-party service providers such as for accessing on-line services, purchasing or subscribing to other offerings via the Internet or interactive options on your dashboard that are separate and apart from the amounts charged by us. You are solely responsible for all such charges payable to third parties, including all applicable taxes.
    5. Payment by Credit Card, ACH or Check. Use of any credit card to pay for the Services is governed by the applicable card issuer agreement. If we do not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand. If you pay by check, you authorize us to collect your check electronically. You agree that you may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), or other statements or releases on or accompanying checks or other payments accepted by us and any such notations shall have no legal effect.
    6. BMS’s Remedies if You Pay Late or Fail to Pay. You may be billed fees, charges, and assessments related to late or non-payments if for any reason we do not receive payment for full amounts billed to you by the due date.
      1. Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. If you change your telephone number or other contact information without notifying us of such change, you agree that you will be responsible for all costs(including attorneys’ fees) and liabilities incurred by us or our collection agent as a result of any attempt to collect any debt through the telephone number or contact information you provided, including any costs or liabilities associated with misdirected calls.
      2. Suspension/Disconnect: If you fail to pay the full amount due for any or all charges then we, at our sole discretion in accordance with and subject to applicable law, may suspend or disconnect any or all the Services you receive without a reduction in the fee or charges for the Services.
    7. Reconnection Fees and Related Charges. If you resume Services after any suspension as described, we may require you to pay additional installation or activation fees. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Agreement and applicable law.
    8. Your Responsibilities Concerning Billing Questions. Subject to applicable law, if you intend to dispute a charge or request a billing credit, you must contact us within 60 days of the date on the bill or you waive any such disputes or credits.
  3. REFUNDABLE DEPOSIT AND REFUNDS. We may require you to pay a refundable deposit when you activate the Services, if you add additional Big Mouth Survey Services or if you fail to pay any amounts when they are due. Subject to applicable law your deposit will be credited to your account (without interest unless otherwise required by law) the earlier to occur of: (1) your account remains in good standing for twelve (12) months or (2) upon full disconnection of all Services. Refunds shall be provided within thirty (30) days of Service disconnection and the return of all Equipment or as otherwise specified by applicable law in an amount equal to the credit balance on your account, if any, minus any amounts due on your account (including without limitation, any amounts owed for the Services or for any Equipment that is damaged, altered, or subject to an Unreturned Equipment Fee as defined in Section 9(d).
  4. CHANGES TO SERVICES.Subject to applicable law, we have the right to change our Services, including Equipment, rates and charges, at any time with or without notice to you. We also may rearrange, delete, add to, or otherwise change programming or features or offerings contained in the Services, including, but not limited to, content, functionality, hours of availability, equipment requirements, speed, and upstream and downstream rate limitations. We may deliver any notice concerning changes to the Services and our relationship with you, including notice of any change to this Agreement, in any one or more of the following ways, as determined in our sole discretion: (1) by posting it on http://www.BigMouthSurvey.comor any other website about which you have been notified; (2) by mail or hand delivery to your business location; (3) by e-mail to the e-mail address for your account in our records; or (4) by including the information on or with your bill for Services. You agree that any one of the foregoing will constitute sufficient and effective notice under this Agreement. Because we may from time to time notify you about important information regarding the Services and this Agreement by these methods, you agree it is your responsibility to regularly check your postal mail, e-mail, service texts, and all postings at http://www.BigMouthSurvey.comorany other website about which you have been notified.
  5. ACCESS TO YOUR PREMISES AND CUSTOMER EQUIPMENT a.Premises. You agree to allow us and our agents the right to enter your property at which the Services will be provided (the “Premises”) at reasonable times, for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Services. Client warrants that it is either the owner of the Premises or that it has the authority to give access to the Premises. If you are not the owner of the Premises, you are responsible for obtaining any necessary approval from the owner to allow us and our agents into the Premises to perform the activities specified above. In addition, you agree to supply us or our agent, if requested, the owner’s name, address, and phone number and/or evidence that the owner has provided such authorization. b.Customer Equipment.“Customer Equipment” means software, hardware or services that Client may choose to use in connection with the Services and that is not provided or leased by BMS or its agents. Notwithstanding the last sentence, any equipment purchased by you from us (or our agent) and under an express sale agreement shall constitute “Customer Equipment”. You agree to allow us and our agents the rights to insert cables and other hardware in the Customer Equipment, send software and/or “downloads” to the Customer Equipment and install, configure, maintain, inspect and upgrade the Customer Equipment. You warrant you are either the owner of the Customer Equipment or that you have the authority to give us access to the Customer Equipment. If you are not the owner of the Customer Equipment, you are responsible for obtaining any necessary approval from the owner to allow us and our agents access to the Customer Equipment to perform the activities described in this paragraph. In addition, you agree to supply us or our agents, if we ask, the owner’s name, address and phone number and/or evidence that the owner provided such authorization. For avoidance of doubt, “Customer Equipment” does not include Big Mouth Survey Equipment for which you have paid an Unreturned Equipment Fee.
  6. MAINTENANCE AND OWNERSHIP OF EQUIPMENT AND SOFTWARE
    1. Big Mouth Survey Equipment.“Big Mouth Survey Equipment” means all new or reconditioned equipment that we or our agent provides or leases to you, including, but not limited to, cabling or wiring (except for Inside Wiring, as defined in Section 6(c) below) and related electronic devices, tablets, magnetic prints, battery extender Packs, USB cords, and any other hardware and includes all software and programs contained within Big Mouth Survey Equipment or downloaded to Customer Equipment by us. Client expressly agrees that it will use the Big Mouth Survey Equipment exclusively in connection with the Services. Client agrees that all Big Mouth Survey Equipment belongs to BMS and its affiliates and agents and will not be deemed fixtures or in any way part of the Premises. We may remove or change the Big Mouth Survey Equipment at our discretion at any time the Services are active or following the termination of Services. You acknowledge that any addition to, removal of, or change to the Big Mouth Survey Equipment may interrupt your Services.You may not sell, lease, abandon, or give away the Big Mouth Survey Equipment, or permit any other service provider to use the Big Mouth Survey Equipment, including Big Mouth Survey Equipment for which an Unreturned Equipment Fee has been paid. The Big Mouth Survey Equipment may only be used in the Premises unless expressly permitted by us. At your request, we may relocate the Big Mouth Survey Equipment for an additional charge. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE Big Mouth Survey EQUIPMENT OR SERVICES AT A LOCATION OTHER THAN THE PREMISES OR OTHERWISE EXPRESSLY AUTHORIZED BY US, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone other than BMS or its agents to service the Big Mouth Survey Equipment. You are responsible for loss, repair, replacement and other costs, damages, fees and charges if you do not return the Big Mouth Survey Equipment to us in an undamaged condition. For avoidance of doubt, Big Mouth Survey Equipment remains the property of Big Mouth Survey, LLC, and Big Mouth Survey, LLC retains title to all Big Mouth Survey Equipment, at all times, including but not limited to after payment of an Unreturned Equipment Fee.
      1. Customer Equipment.
        1. Responsibility: We have no responsibility for the operation, support, maintenance or repair of any Inside Wiring or Customer Equipment including, but not limited to, Customer Equipment to which we or a third party has sent software or downloads. You agree that by using theServices, we, or our authorized agents and equipment manufacturers, are authorized to send code updates to the Customer Equipment, including, but not limited to, electrical outlets and USB Cords, at any time we determine it is necessary to do so. Such code updates may change, add or remove features or functionality of the Customer Equipment or the Services.
          1. For Software & Kiosk. In order to use online features of Software where we make those features available, you are required to provide access to the Internet and electrical power to power the Kiosk.
          2. Non-Recommended Configurations: Customer Equipment that does not meet our minimum technical or other specifications constitutes a “Non-Recommended Configuration.”NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS OR AGENTS WARRANTS THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE OR USE THE SERVICES. YOU ACKNOWLEDGE THAT INSTALLATION, ACCESS, OPERATION OR USE OF A NON-RECOMMENDED CONFIGURATION COULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, YOU, YOUR PREMISES OR BMS EQUIPMENT. NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE.
        2. No Unauthorized Devices or Tampering: You agree not to attach or assist any person to attach any unauthorized device to, or otherwise tamper with Big Mouth Survey Equipment or the Services for any purpose, including, but not limited to the unauthorized reception of the Services. If you make or assist any person to make any unauthorized connection or modification to or otherwise re-engineering, tamper with Big Mouth Survey Equipment or the Services or any other part of our network, we may terminate the Services and recover damages resulting from your actions. You agree that it would be difficult, if not impossible, to calculate precisely the lost revenue resulting from your receipt of unauthorized Services or the tampering with Big Mouth Survey Equipment or our network and therefore you agree to pay us as liquidated damages, the sum of $500.00 per device used to receive the unauthorized Services. The $500 liquidated damages are in addition to our cost to replace any altered, damaged, or unreturned Big Mouth Survey Equipment or other equipment owned by us, including any incidental costs. The unauthorized reception of the Services may result in criminal fines and/or imprisonment.
      2. End User Software Licenses. Software or applications may be required to use certain features of the Services. You agree to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed or used in connection with the Services including, without limitation, the Web Services Terms of Service, https://www.BigMouthSurvey.com, as these agreements may be amended from time to time. All such agreements are incorporated in this Agreement by reference. When this Agreement terminates, all end user licenses also terminate and you agree to destroy all versions and copies of all software received by you in connection with the Services.
      3. Revocable License. The Services and Big Mouth Survey Equipment, including, but not limited to, any firmware or software embedded in the Big Mouth Survey Equipment or used to provide the Services, are protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. You are granted a revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with this Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in the Big Mouth Survey Equipment or used to provide the Services. You shall not take any action nor allow anyone else to take any action that will reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software.
  7. USE OF SERVICES. You agree that the Services and the Big Mouth Survey Equipment will be used only for opinion gathering, business and commercial purposes, unless otherwise specifically authorized by us in writing. You are prohibited from reselling or permitting another to resell the Services in whole or in part, or using or permitting another to use the Big Mouth Survey Equipment or the Services, directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any policy we post applicable to the Services. Use of the Big Mouth Survey Equipment or Services for transmission, communications or storage of any information, data or material in violation of any U.S. federal, state or local regulation or law is prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Big Mouth Survey Equipment and Services at the Premises or at other locations authorized by us and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable policies including, but not limited to, our acceptable use and privacy policies. You are liable for all authorized and unauthorized use of the Services and you agree to notify us immediately if the Big Mouth Survey Equipment has been stolen or the Services are used without your authorization. If you fail to notify us in a timely manner, the Services may be terminated without notice and you may incur additional charges.
  8. ASSIGNABILITY. This Agreement and the Services furnished hereunder may not be assigned by you. We may freely assign our rights and obligations under this Agreement with or without notice to you.
  9. TERMINATION OF THIS AGREEMENT
    1. Term. Except for those provisions which by their nature survive the termination of this Agreement, this Agreement will be in effect from the time that the Services are activated until (1) it is terminated as provided for by this Agreement or by any addendum to this Agreement or (2) it is replaced by a revised Agreement. If you self-install Big Mouth Survey Equipment, Services charges begin the earliest of (1) the day on which you picked up Big Mouth Survey Equipment at our service center, (2) the day you install the Services, (3) the day your order for the Services is entered into our billing system if Big Mouth Survey Equipment is not required for the Services or (4) five (5) days after the date we ship the Big Mouth Survey Equipment to you.
    2. Termination by Client. Unless your Services are subject to a minimum term agreement, you may terminate this Agreement for any reason at any time by notifying us in one of the following ways: (1) mailing a written notice to our local business office; (2) send an electronic notice to the email address specified on https://www.BigMouthSurvey.com; or (3) calling our customer service [during normal business hours]. Prior to effecting such termination, or any other change to your account, we may verify your identity and confirm your election. Subject to applicable law or the terms of any agreements with governmental authorities, all applicable fees and charges for the Services will accrue until this Agreement has terminated, the Services has been disconnected, and all Big Mouth Survey Equipment has been returned. Except for non-refundable fees and charges, we will refund all prepaid monthly service fees charged for Services after the date of termination (less any outstanding amounts due us for the Services, affiliate services, Big Mouth Survey Equipment, or other applicable fees and charges).
    3. Suspension and Termination by BMS. Subject to applicable law, we reserve the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to any users (e.g., email or voicemail). We may take these actions if we: (1) determine that your use of the Services does not conform with the requirements set forth in this Agreement, (2) determine that your use of the Services interferes with our ability to provide the Services to you or others, (3) reasonably believe that your use of the Services may violate any laws, regulations, or written and electronic instructions for use, (4) reasonably believe that your use of the Services interferes with or endangers the health and/or safety of our personnel or third parties or (5) you threaten, harass, or use vulgar and/or inappropriate language toward our personnel. Our action or inaction under this Section shall not constitute review or approval of your or any other users’ use of the Services or information transmitted by or to you or other users.
    4. Your Obligations Upon Termination. You agree that upon termination of this Agreement you will do the following:
      1. You will immediately cease all use of the Services and all Big Mouth Survey Equipment;
      2. You will pay in full for your use of the Services up to the date that this Agreement has been terminated and the Services are disconnected; and
      3. You will return all Big Mouth Survey Equipment to us at our local service center or to our designee in working order, normal wear and tear excepted within ten (10) days of the date on which Services are disconnected. Failure to return any Big Mouth Survey Equipment will result in the charge of an Unreturned Equipment Fee. Upon our request during regular business hours at a time agreed upon by you and us, you will permit us and our agents, to access the Premises to remove all Big Mouth Survey Equipment and other material provided by us.
      4. Unreturned Equipment Fee. “Unreturned Equipment Fee” refers to a fee charged by Big Mouth Survey to a subscriber for any unreturned Big Mouth Survey Equipment upon termination of the services provided under this Agreement. The payment of an Unreturned Equipment Fee shall not result in a sale of, or the transfer of title to, any Big Mouth Survey Equipment, and such equipment shall remain the property of Big Mouth Survey, and Big Mouth Survey retains title to Big Mouth Survey Equipment at all times. Big Mouth Survey in no way relinquishes ownership of (including title to) Big Mouth Survey Equipment by the payment of an Unreturned Equipment Fee. Even if an Unreturned Equipment Fee has been paid, Big Mouth Survey Equipment shall not be resold, used or operated in any manner. If you pay an Unreturned Equipment Fee and subsequently return the equipment, you will be refunded your Unreturned Equipment Fee in full.
  10. LIMITED WARRANTY. THE BMS EQUIPMENT AND THE SERVICES ARE PROVIDED “ASIS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WARRANT THAT THE Big Mouth Survey EQUIPMENT OR THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NON INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW
  11. LIMITATION OF OUR LIABILITY
    1. Application. The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of us and our underlying third-party service providers, agents, suppliers, distributors, licensors and business partners (and their respective officers, employees, agents, contractors or representatives) which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine.
    2. One Year Limitation Period. YOU MUST COMMENCE YOUR ACTION WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENTS OR FACTS. AS PROVIDED IN SECTION 2(i), YOU MUST NOTIFY US OF ANY BILLING DISPUTE WITHIN 60 DAYS OF RECEIVING THE CHARGES YOU DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT OR FACTS. IF FOLLOWING SUCH NOTIFICATION THE DISPUTE IS NOT RESOLVED TO YOUR SATISFACTION YOU MAY COMMENCE AN ACTION IN ACCORDANCE WITH THIS AGREEMENT FOR UP TO ONE (1) YEAR FROM RECEIPT OF THE DISPUTED CHARGES.
    3. Customer Equipment. YOU UNDERSTAND THAT CUSTOMER EQUIPMENT MAY NEED TO BE OPENED, UPDATED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS, IN CONNECTION WITH THE INSTALLATION, UPDATING OR REPAIR OF THE SERVICES. THE OPENING, ACCESSING OR USE OF CUSTOMER EQUIPMENT USED IN CONNECTION WITH THE SERVICES MAY VOID WARRANTIES PROVIDED BY THE MANUFACTURER OR OTHER PARTIES RELATING TO THE CUSTOMER EQUIPMENT HARDWARE OR SOFTWARE. NEITHER WE NOR ANY OF OUR AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS, SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES. NEITHER WE NOR ANY OF OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT EXCEPT AS MAY BE CAUSED BY GROSS NEGLIGENCE OR WILL FUL MISCONDUCT. IN THE EVENT OF GROSS NEGLIGENCE OR WILL FUL MISCONDUCT BY US, OUR SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY.
    4. Other Services or Equipment. BY ACCEPTING THIS AGREEMENT,YOU WAIVE ALL CLAIMS AGAINST US FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE Big Mouth Survey EQUIPMENT OR THE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 9.
      1. Software. We make no representation or warranty that any software or application installed on Customer Equipment, downloaded to Customer Equipment, or available through the Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the Services if a virus or other harmful feature or software is present on your Customer Equipment. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call related to a virus or other harmful feature detected on the Customer Equipment. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT. In addition, as part of the installation process for the software and other components of the Services, system files on the Customer Equipment may be modified. We do not represent, warrant or covenant that these modifications will not disrupt the normal operations of any of the Customer Equipment including the loss of files. We do not represent, warrant, or covenant that the installation of the special software or applications or access to our Web portal(s) will not cause the loss of files or disrupt the normal operations of any of the Customer Equipment. FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM AND YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
      2. Disruption of Service. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property, or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business, or personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from High Risk Activities. In all other cases of an interruption of the Services, you shall be entitled upon a request made within 60 days of such interruption, to a pro rata credit for any Services interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Credit issued will be at the sole discretion of BMS. EXCEPT AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICES.
      3. Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation, their services, equipment, infrastructure, or content. We shall not be bound by any undertaking, representation or warranty made by an agent, or employee of ours or of our underlying third-party providers and suppliers in connection with the installation, maintenance, or provision of the Services, if that undertaking, representation, or warranty is inconsistent with the terms of this Agreement. We are not responsible for any services, equipment, infrastructure, and content that are not provided by us, or the performance (or non-performance) of third-party services, equipment, infrastructure, or content, even if they are components of the Services, and we shall have no liability with respect to such services, equipment, infrastructure, and content. You should address questions or concerns relating to such services, equipment, infrastructure, and content to the providers of such services, equipment, infrastructure, and content. We do not endorse or warrant any third-party products, services, or content that are distributed or advertised over the Services.
      4. Damages. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER WE NOR OUR AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS: (1) ANY DIRECT,INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE Big Mouth Survey EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICES OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE Big Mouth Survey EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICES(INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICES, THE Big Mouth Survey EQUIPMENT, OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL, E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR(2)ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE Big Mouth Survey EQUIPMENT, THE CUSTOMER EQUIPMENT OR THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
      5. Client’s Sole Remedies. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above limitations may not apply if your state does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, our liability and of our employees, affiliates, suppliers, agents, contractors, distributors, licensors and business partners is limited to the maximum extent permitted by law.
      6. Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
  12. INDEMNIFICATION AND LIABILITY.YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US AND OUR EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS AND BUSINESS PARTNERS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE SERVICES, THE BMS EQUIPMENT OR THE CUSTOMER EQUIPMENT; AND (b) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICES OR ANY UNAUTHORIZED APPARATUS OR SYSTEM.
  13. BINDING ARBITRATION
    1. Purpose. Any Dispute involving you and us shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.
    2. Definitions. This Arbitration Provision shall be broadly interpreted. “Dispute” means any claim or controversy related to us or our relationship, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this or any prior Agreement; (3) claims that arise after the expiration or termination of this Agreement, and (4) claims that are the subject of purported class action litigation. As used in this Arbitration Provision, “us” means Big Mouth Survey and any of its predecessors, successors, assigns, parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of the Big Mouth Survey Services or Equipment.
    3. Right to Opt Out. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30 DAYS OF YOUR FIRST NOTICE OF DISPUTE, BY VISITING https://www.BigMouthSurvey.com, OR IN WRITING BY MAIL TO BIG MOUTH SURVEY, 515 S WEST END BLVD,STE #202, QUAKERTOWN, PA 18951, ATTN: BMS LEGAL DEPARTMENT/ARBITRATION. YOUR WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR NAME, ADDRESS AND OUR ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR SERVICES PROVIDED BY US. IF YOU HAVE PREVIOUSLY OPTED OUT OF ARBITRATION WITH RESPECT TO THE ACCOUNT GOVERNED BY THIS AGREEMENT, YOU DO NOT NEED TO DO SO AGAIN. YOU MUST SEPARATELY OPT OUT FOR EACH ACCOUNT UNDER WHICH YOU RECEIVE SERVICES. ANY OPT OUTS SUBMITTED AFTER THIS PERIOD WILL NOT BE CONSIDERED EFFECTIVE.
    4. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org). You may deliver any required or desired notice to us by mail to Big Mouth Survey, 515 S. West Blvd, Suite 202, Quakertown, Pa 18951 –ATTN: BMS LEGAL DEPARTMENT.
    5. Right to Sue in Small Claims Court: Notwithstanding anything in this Arbitration Provision to the contrary, either you or we may elect to have an action heard in a small claims court in the area where you receive(d) Services from us if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
    6. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the AAA rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the AAA Consumer Arbitration Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to you in the area where you receive Services from us. If you no longer receive Services from us when you notify us of your Dispute, then any arbitration hearing will take place at a location convenient to you in the county where you reside when you notify us of your Dispute provided that we offer Services in that county, or in the area where you received Services from us at the time of the events giving rise to your Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect client account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
    7. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
    8. Arbitral Fees and Costs. If your claim seeks more than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA rules. If your claims seek less than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be our responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs shall be governed by the AAA Rules and you shall reimburse us for all fees and costs that were your obligation to pay under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay
    9. Survival. This Arbitration Provision shall survive the termination of your Services with us.
  14. CLIENT PRIVACY NOTICE AND SECURITY
    1. We will provide you with a copy of our client privacy notice at the time we enter into an agreement to provide any Services to you, and annually afterwards, or as otherwise permitted by law. You can view the most current version of our privacy notice by going to https://www.BigMouthSurvey.com.
    2. To the extent we are expressly required to do so by applicable law, we will provide notice to you of a breach of the security of certain personally identifiable information about you. It is our information security policy to provide such notice to you in the manner set forth in Section 16.
  15. GENERAL
    1. Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between you and us with respect to the subject matter of this Agreement, and replace any and all prior written or verbal agreements. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. We do not waive any provision or right if we fail to insist upon or enforce strict performance of any provision of this Agreement. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of this Agreement.
    2. Waiver of Jury Trial. WHETHER IN COURT OR IN ARBITRATION, BMS AND CLIENT AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY.
    3. Additional Representations and Warranties. In addition to representations and warranties Client made elsewhere in this Agreement, Client also represents and warrants that:
      1. Age: You are at least 18 years of age.
      2. Client Information: You represent and warrant that you have provided us with information that is accurate, complete and current, including without limitation your legal name, address, telephone number(s), the number of devices on which or through the Services is being used, and payment data (including without limitation information provided when authorizing recurring payments). YOU AGREE TO NOTIFY US IMMEDIATELY IF THERE IS ANY CHANGE IN THE INFORMATION THAT YOU HAVE PROVIDED TO US, INCLUDING WITHOUT LIMITATION ANY CHANGE IN YOUR TELEPHONE NUMBER OR MOBILE TELEPHONE NUMBER. FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT. IF YOU OWE ANY OUTSTANDING AMOUNTS FOR THE SERVICES OR HAVE ANY UNRETURNED EQUIPMENT, THIS OBLIGATION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND SHALL CONTINUE UNTIL YOU PAY ALL OUTSTANDING AMOUNTS IN FULL AND RETURN ALL EQUIPMENT. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED.
      3. Information Provided to Third Parties. We are not responsible for any information provided by you to third parties including credit/debit card or banking information, and this information is not subject to the privacy provisions of this Agreement or the privacy notice for the Services. You assume all privacy, security, and other risks associated with providing any information, including client proprietary network information (“CPNI”) or personally identifiable information, to third parties via the Services. For a description of the privacy protections associated with providing information to third parties, you should refer to the privacy policies, if any, provided by those third parties.
      4. Protection of Our Information and Marks. All Services information, documents, and materials on our websites are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of ours and our affiliates are and shall remain our exclusive property. Nothing in this Agreement shall grant you the right or license to use any of the marks.
      5. Retention of Rights. Nothing contained in this Agreement shall be construed to limit our rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, we and our agents reserve the right to delete all your data, files, electronic messages or other information that is stored on our or our suppliers’ servers or systems. BMS has no liability whatsoever as the result of the loss of any such data, names, addresses, or numbers.
  16. NOTICE METHOD FOR CHANGES TO THIS AGREEMENT. We may deliver any notice concerning our relationship with you, including notice of any change to this Agreement, in any one or more of the following ways, as determined in our discretion: (1) by posting it on https://www.BigMouthSurvey.comor any other website about which you have been notified; (2) by mail or hand delivery to your Premises; (3) by e-mail to the address for your account in our records; or (4) by including it on or with your bill for Services. You agree that any one of the foregoing will constitute sufficient and effective notice under this Agreement. Because we may from time to time notify you about important information regarding the Services and this Agreement by these methods, you agree it is your responsibility to regularly check your postal mail, e-mail and all postings at https://www.BigMouthSurvey.comor any other website about which you have been notified. If you find any change to this Agreement to be unacceptable, you have the right to cancel your Services. Your continued receipt of the Services for more than 30 days after we deliver notice of the change, however, will constitute your acceptance of the change.

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