SurveyMini® App User Agreement
Effective Date: April 24, 2015
Major consumer brands are eager to learn more about the choices you make. Your opinion will be used to help organizations better understand your preferences and ultimately serve all customers better. If you choose to participate, SMG’s SurveyMini App (“App”) will collect your location data and data from thousands of other people, and use SMG’s Location Analytics Engine (powered by Locately®) to help these brands serve you better. You may opt out at any time by deleting this App.
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SurveyMini App User Agreement
) describe the terms and conditions on which Service Management Group, Inc. and its affiliates (“SMG”
or “we” or “us”) offers you access the websites, applications, services and mobile applications on or to which these Terms are linked or referenced (collectively, the “SMG Services”
Before accessing and using the SMG Services, please read these Terms carefully because they constitute a legal agreement between SMG and you.
BY USING ANY OF THE SMG SERVICES, YOU AGREE TO THESE TERMS AND AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT TO DO SO. IF YOU ARE USING THE SMG SERVICES ON BEHALF OF YOUR EMPLOYER, YOUR ACCEPTANCE OF THESE TERMS IS DEEMED AN AGREEMENT BETWEEN YOUR EMPLOYER AND SMG AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND YOUR EMPLOYER TO THESE TERMS.
IMPORTANT NOTE: These Terms contain provisions that limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of any class or representative action. Please see “DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY” (Section 7) and “DISPUTE RESOLUTION” (Section 9) below for more information.
IF YOU DO NOT AGREE TO ANY OF THESE TERMS, THEN PLEASE DO NOT USE THE SERVICES.
1. CHANGES TO TERMS
The Effective Date of these Terms is set forth at the top of this webpage. As we add new features, we may need to modify these Terms. Your continued use of the SMG Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of or agreements, notices or statements about the Terms.
2. ADDITIONAL TERMS
Certain services offered by or through the SMG Services, such as mobile applications, sweepstakes, offers contests and other services, may be governed by additional terms and conditions presented in conjunction with them. You must agree to the additional terms before using such services. These Terms and any additional terms will apply equally. If any additional term is irrevocably inconsistent with any provision of these Terms, the additional term will prevail solely to the extent of the inconsistency.
3. SMG CONTENT
The SMG Services, including any information, graphics, images, artwork, text, video clip, data compilations, software, audio clip, trademark, service marks, log, trade manes and other content provided on, in or through the SMG Services (collectively, “SMG Content”
) are owned by SMG, our affiliates, partners, licensors or represented companies and protected under both United States and foreign copyright, trademark patent and other laws. Except as set forth in the limited license section below, or as required under applicable law, neither the copyrights, trademarks, other intellectual property nor any portion of the SMG Services may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, or otherwise exploited, in whole or in part, for any purpose without our prior written consent.
If you agree to these Terms (as well as any additional terms and conditions related to specific SMG Content), then SMG grants to you a personal, nonexclusive, nontransferable and limited license (without the right to sub-license) to access and use the SMG Services and download, print and/or copy SMG Content solely for your own personal use and subject to these Terms. You acknowledge that the trade secrets and intellectual property embodied in the SMG Services have not been and will not be licensed or otherwise disclosed to you. You acknowledge that the HTML code that SMG creates to generate the pages of the Services are protected by SMG’s copyrights. All rights not expressly granted herein are reserved by SMG.
Unless SMG provides you with written authorization to do so, you may not:
> incorporate any SMG Content into any other work (such as your own website) or use SMG Content in any public or commercial manner;
4. USING THE SMG SERVICES
> change any of the notices about copyright, trademarks or other intellectual property rights that may be part of the SMG Content; or
> ‘”deep link”’ to any of the SMG Services (i.e., link to any page other than the home page of one of the SMG Services).
4.1. Eligibility: SMG Services are not intended for use by children. If you are under the age of 18, you may not use SMG’s Services.
4.2 Your Account: You may be required to create an account (“Account”
) to use certain features of the SMG Services. If you provide untrue, incomplete or inaccurate information, you understand that we have the right to terminate your Account and use of the SMG Services.
By creating an Account, you agree that SMG may contact you using the email address that you provide when activating your Account.
Please do not share your Account with anyone else. You are responsible for all use of your Account, including use by others to whom you have provided access to your Account.
4.3. Your Responsibilities: You may use the SMG Services for lawful purposes only. You may not use the SMG Services in any manner that could damage, disable, overburden or impair SMG’s servers or networks or interfere with any other party's use and enjoyment of the SMG Services.
You may not attempt to gain unauthorized access to the SMG Services, other users’ Accounts or SMG’s computer systems or networks through hacking, password mining or any other means. Without limiting any of the foregoing, you agree that you shall not (and you agree not to encourage or allow any third party to):
a. copy, modify, adapt, translate, reverse engineer, decode or otherwise attempt to derive or gain access to any portion of the SMG Services or SMG Content;
b. remove any copyright, trademark or other proprietary rights notices contained in the SMG Services or SMG Content;
c. use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape or index any portion of the SMG Services;
d. rent, lease, lend, sell, sub-license, assign, distribute, publish, transfer or otherwise make available the SMG Services, or any features or functionality of the SMG Services, to any third party for any reason, including by making the SMG Services available on a network where it is capable of being accessed by more than one device at any time
e. reformat or frame any portion of the web pages that are part of the SMG Services;
f. create more than one Account by automated means or under false or fraudulent pretenses; or
g. collect or store personal data about any other user without his/her express prior written consent.
SMG has the discretion to terminate your access to the SMG Services without notice for any violation of the above rules.
You are solely responsible for any and all charges, fees and other costs related to use of the SMG Services. If you access and use the SMG Services on your smartphone, tablet or other mobile device, you must have wireless service through Wi-Fi or a participating mobile service provider. Certain services may require text messaging (SMS or MMS) capability. You agree that you are solely responsible for all message and data charges that you incur from your mobile service provider. We do not impose a separate charge for any text messaging services we may offer but message and data rates may apply. All charges are billed by and payable to your mobile service provider. Please contact your mobile service provider for pricing plans and details. SMG is not liable for any delays in the receipt of any text messages as delivery is subject to effective transmission from your mobile service provider. Text messages are provided on an “as is” basis and may not be available in all areas at all times.
Once you opt-in to receive text messages from us, the frequency of text messages that we send to you will depend on your transactions with us. By agreeing to receive text messages, you understand and agree that SMG may use an automatic dialing system to deliver text messages to you and that your consent is not required as a condition of purchase for any goods or services.
4.4 Submissions. SMG may from time to time offer areas where you and other users can post or otherwise submit ratings, suggestions, ideas, notes, concepts or other information or materials to or through the SMG Services (collectively, “Submissions”
). By sending, posting or transmitting Submissions to SMG (and/or our designees) or any area of the SMG Services, you grant SMG and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), transferable, royalty-free, perpetual, irrevocable right to use, reproduce, sub-license (through multiple tiers), distribute, create derivative works of, perform and import your Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you. In other words, SMG has the automatic right to use your Submissions -- including reproducing, disclosing, publishing or broadcasting your Submission -- anywhere, anytime, in any medium and for any purpose. Under no circumstances are you entitled to payment if SMG uses one for your Submissions. All Submissions are deemed non-confidential and non-proprietary.
By posting a Submission, which you may do with a link to your username or anonymously when posting review content which may be made publicly available, you represent and warrant that:
> your Submission is true and accurate;
> your Submission does not infringe, misappropriate or violate any third party’s copyright, trademark, patent, literary, trade secret, privacy, publicity, proprietary or other right;
> your Submission does not contain information that identifies any person unless you have such person’s express prior written consent;
> your Submission does not make unsubstantiated claims about any third party or its products or services or contain any slanderous, defamatory, obscene, pornographic, threatening or harassing comments or other content; and
> your Submission complies with applicable laws, rules and regulations.
You acknowledge and agree that SMG has the right (but not the obligation) to alter, remove or refuse to post or allow to be posted any Submission. SMG takes no responsibility and assumes no liability for any Submission posted by you or any third party.
SMG strongly encourages you not to disclose any personal information in your Submissions because other people can see and use the personal information in your Submissions. SMG is not responsible for information that you choose to communicate via Submissions.
5. THIRD-PARTY SITES & SERVICES
The SMG Services may contain links to third-party websites and services, including social media (collectively, “Linked Services”
). Linked Services are not under the control of SMG and SMG is not responsible for Linked Services or for any information or materials on, or any form of transmission received from, any Linked Service. The inclusion of a link does not imply endorsement by SMG of the Linked Service or any association with the operators of the Linked Service. SMG does not investigate, verify or monitor the Linked Services. SMG provides links to Linked Services for your convenience only. You access Linked Services at your own risk.
Please make sure that you carefully read our
to learn about the information that SMG collects on the SMG Services and how we process it.
7. DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY
SMG warrants that SMG has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SMG SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. To the maximum extent permitted by applicable law, SMG specifically disclaims all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. SMG does not warrant that (a) the SMG Services will meet your requirements, (b) operation of the SMG Services will be uninterrupted or virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by SMG or its authorized agents does not and will not create a warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOUR USE OF THE SMG SERVICES IS AT YOUR OWN RISK.
YOU AGREE THAT IN NO EVENT WILL SMG BE LIABLE (a) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF SMG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (b) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SMG SERVICES. The foregoing disclaimer of liability will not apply to the extent prohibited by applicable law.
IF FOR ANY REASON THE DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 IS/ARE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN SMG’S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES HEREUNDER SHALL BE LIMITED TO $1,000.
You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that SMG would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to indemnify and defend SMG and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against SMG by any third party arising from your use of the SMG Services or any violation of these Terms, the rights of a third party or applicable law. SMG reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. No settlement that affects the rights or obligations of SMG may be made without SMG’s prior written approval.
9. DISPUTE RESOLUTION
These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Missouri without giving effect to the principles of conflicts of laws of such state and are binding upon the parties hereto in the United States and worldwide. You and SMG agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.
YOU AND SMG AGREE THAT EACH MAY BRING claims against the other only on an individual basis and not as a plaintiff or CLASS member in any PURPORTED class or representative action or proceeding.
YOU AND SMG AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION 9 AND THAT YOU AND SMG WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and SMG and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of these Terms to arbitration (collectively, “Covered Disputes”) will be settled by binding arbitration in the State of Missouri administered by the American Arbitration Association (AAA) in accordance with its rules (including its rules and procedures for consumer-related disputes) in effect on the date thereof. Prior to initiating any arbitration, the initiating party will give the other party at least 60 days' advanced written notice of its intent to file for arbitration. SMG will provide such notice by email to the email address that you provided when you created your account and you must provide such notice to SMG by email at firstname.lastname@example.org.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, SMG will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse SMG for all fees associated with the arbitration that SMG paid on your behalf which you otherwise would be obligated to pay under the AAA's rules.
A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator’s decision must be with written explanation and remain confidential. SMG and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. NEITHER SMG NOR YOU ARE ENTITLED TO ARBITRATE ANY COVERED DISPUTE AS A CLASS, REPRESENTATIVE OR PRIVATE-ATTORNEY ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO PROCEED ON A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL BASIS. If any provision of the agreement to arbitrate in this Section 9 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 9, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).
Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against SMG under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any disputes is in the United States according to the terms of this Section 9.
From time to time, SMG may offer you the opportunity to receive rewards, such as reward points, discounts or special offers (collectively, “Rewards”). We will notify you when Rewards are available to you through the SMG Services. The benefit of the Rewards may differ as may the validity period, so please check the details of each Reward when you receive it. For SurveyMini, after ninety (90) days of inactivity, your rewards points will expire. Your Rewards are for your personal use. You may not transfer, assign, sell, trade or barter your Rewards. Unless required by law, Rewards are not redeemable for cash and may not be combined with any other SMG or client promotion, offer or other discount. No credits or refunds will be issued for any reason after you redeem your Rewards. SMG reserves the right to modify, terminate or suspend the availability of Rewards. You agree to be bound by the decisions of SMG, which are final and binding in all matters relating to the Rewards.
11. UPDATES TO MOBILE APPLICATIONS
We may from time to time (in our sole discretion) develop and provide updates for our mobile applications, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that SMG has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Based on your mobile device settings, when your mobile device is connected to the Internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates.
Please promptly download and install all Updates. If you do not, portions of the SMG Services may not properly operate. You further agree that all Updates will be deemed part of the SMG Services and be subject to all terms and conditions of these Terms.
12. ELECTRONIC CONTRACTING
Your affirmative act of using and/or registering for the SMG Services constitutes your consent to enter into agreements with us electronically.
13. GEOGRAPHIC RESTRICTIONS
The SMG Services and SMG Content are based in the State of Missouri in the United States and although each may be provided for access and use by persons located outside the United States, you acknowledge that for legal or operational reasons you may not be able to access the SMG Services or SMG Content in your jurisdiction. If you access the SMG Services or SMG Content from outside the United States, you are responsible for compliance with local laws.
The SMG Services may be subject to certain national export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the SMG Services to, or make the SMG Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the SMG Services available outside the US.
14. US GOVERNMENT RIGHTS
The SMG Services are commercial computer software, as defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the SMG Services as are granted to all other users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
These Terms automatically terminate when you fail to comply with any term or condition of them. SMG may terminate or modify your access to the SMG Services, with or without notice to you, at any time for any reason. For example, access to the SMG Services may be denied without notice if SMG believes that you are a minor.
Termination will not limit any of SMG’s other rights or remedies. Sections 3, 7 and 9 as well as any other provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.
16. CLAIMS OF COPYRIGHT INFRINGEMENT
We respond to notices of alleged infringement as required by the US Digital Millennium Copyright Act (“DMCA”), including by removing or disabling access to material claimed to be the subject of infringing activity. If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights otherwise have been violated in or through the SMG Services, please send your claim or notice of infringement to our DMCA agent at:
Service Management Group, Inc.
1737 McGee Street
Kansas City, MO 64108
Our DMCA Agent will only respond to notices and inquiries that comply with the requirements of the DMCA. Please see www.copyright.gov for more information.
a. These Terms and the privacy policies listed on the respective sites contain the entire understanding by and among SMG and you with respect to the matters contained herein.
b. These Terms inure to the benefit of and will be binding upon SMG’s and your successors and assigns, respectively.
c. These Terms may be assigned by SMG but you may not assign them without the prior express written consent of SMG.
d. If any provision of these Terms is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been used.
e. If SMG fails or you fail to perform any obligation under these Terms and the other party does not enforce such obligation, the failure to enforce on any occasion will not constitute a waiver of any obligation and will not prevent enforcement on any other occasion.
f. Nothing contained in these Terms will be deemed to constitute SMG or you as the agent or representative of the other or as joint venturers or partners.
g. If SMG is or you are prevented from performing or unable to perform any obligation under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance will be extended for the period of delay or inability to perform due to such cause.
h. Headings and captions are for convenience only.
You can also write to us at:
Service Management Group, Inc.
Attn: Privacy Officer
1737 McGee Street
Kansas City, MO 64108
®TM trademarks © Service Management Group, Inc. 2016. All rights reserved.