Ethnio Terms & Conditions
Last Modified: May 2018
Kindly read these Terms and Conditions carefully. It may come across like mumbo-jumbo, but it's really important.
These Terms and Conditions constitute a legal agreement ("Agreement") between you and/or your company ("You" or "Your") and Ethnio, Inc. regarding the Ethnio website ("Website") and services, including software, recruiting and/or web communication services ("Services"). "Ethnio" refers collectively to Ethnio, Inc., the Website and Services. By using Ethnio, You agree that You have read, understood, and agree to be bound by this Agreement.
Your use of Ethnio is conditioned upon Your compliance and acceptance of these terms. In other words, we reserve the right to refuse service to anyone, without explanation, if we don't like what You're doing with Ethnio. Faking responses, spamming users, annoying advertising, or porn will get Your account pulled. C'mon now, we're researchers.
1. Summary for Customers and Respondents
There are two categories of Ethnio users: Customers and Respondents, as defined below. Whether You qualify as a Customer, a Respondent, or both depends on Your use of Ethnio. Unless, we expressly identify certain terms of the Agreement as applying only to Customers or only to Respondents, they apply to both.
"Customers" are persons and entities who pay for Services. As a Customer, You agree not to use Ethnio to send unsolicited email (i.e., spam) or for any other advertising purpose. You also agree not to drive more traffic to Ethnio’s servers than You’ve paid for. If You do either of these things, we reserve the right to cancel Your account.
"Respondents" are persons who agree to provide information and data ("Data") to Customers through Ethnio’s screener tool (the "Screener"), which is part of the Services. As a Respondent, You acknowledge the difference between Ethnio and its Customers and agree that Ethnio is not responsible for Customers’ actions or statements. Along those lines, You agree that any language on the Website offering incentive payments for Your participation does not constitute a legally-binding agreement between You and Ethnio. You understand and agree that Customers, at their sole discretion, reserve the right to decide whether or not to include You in any Incentive, as defined below. Customers also have the exclusive right to determine whether the Data You provide qualifies as a complete response.
2. Age Requirement
Ethnio is not available to persons under 18 years of age without written parental consent.
3. Respondent Terms
a. Transmission of Data
As a Respondent, You recognize that, when You submit Data using the Screener, You are transmitting information over the Internet. Depending on the Customer’s implementation of Ethnio, Your Data may be (1) transmitted securely, or (2) transmitted via regular HTTP protocol. You understand and agree that Data submitted by You via regular HTTP protocol is not secure, and You agree to hold Ethnio harmless for any resulting harm, such as a security breach.
Customers’ Responsibility for Incentives. As a Respondent, You may be offered money or other incentives (collectively, "Incentives") by Customers in exchange for Your provision of Data through Ethnio by responding to surveys, usability testing, user research, phone interviews, and more. Customers, and not Ethnio, are exclusively responsible for Incentives or any promise of Incentive.
While Ethnio sometimes sends payments on behalf of Customers to Respondents, all Incentives, including payments, remain the exclusive responsibility of Customers. As a Respondent, You understand that Customers are exclusively responsible for Incentives and agree to hold Ethnio harmless for any delays or failure to receive an Incentive.
Customers’ Discretion to Award Incentives. As a Respondent, You understand and agree that the mention of Incentives on Ethnio is not a legally-binding promise of compensation. You understand and agree that Customers reserve the exclusive right (1) to determine whether the information You provided through Ethnio constitutes a complete and reliable response and (2) to fulfill Incentives as the Customer chooses. Customers expressly reserve the right to refuse Incentives, at their sole discretion, for incomplete responses, responses that were completed so quickly that their accuracy is questionable, multiple responses sent from the same computer, and other sleaze-bag attempts to defraud Customers or exploit their Incentive programs. In addition, Respondents engaging in such behavior may be permanently banned from Ethnio.
c. Third-Party Websites
The Website, Screener, and other parts of Ethnio may contain links to the websites or tools of third parties ("Third-Party Websites"). At times, Respondents may be redirected to Third-Party Websites from within the Screener.
4. Customer Terms
Ethnio will provide the Services to allow for recruiting and gathering voluntary information from users of Your websites ("Your Site"), for the specific purpose of conducting usability or ethnographic research. In accordance with this Agreement, Ethnio may at its sole discretion modify the features of the Services from time to time without prior notice.
b. Ethnio Code
c. Customer Conduct and Content
As a Customer, You agree and understand that You are solely responsible for the content of all visual, written communications sent by You or in Ethnio content created by You. You agree to not use the Services to send, overtly annoy, or spam users with offers outside Your company or organization in violation of applicable law. You further agree not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or that is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. You also warrant and represent that You are the owner or licensee of any content that You upload, record or otherwise transmit through Ethnio, including but not limited to photographs, caricatures, illustrations, designs, icons, articles, text, audio clips, and video clips (collectively, "Customer Content").
You will not upload, record or otherwise transmit Customer Content that: (i) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (iv) is obscene, harmful to minors or child pornographic; (v) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (vi) is materially false, misleading or inaccurate. Although Ethnio is not responsible for any Customer Content, Ethnio may delete any Customer Content violating this Agreement of which Ethnio becomes aware, and terminate Your Ethnio account without advanced notice to You.
d. Payments, Refunds & Cancellation
As a Customer, You agree to pay all Ethnio fees disclosed during the registration process on the Ethnio Website. Any amounts due from You to Ethnio not paid in accordance with the payment terms agreed to during Your registration will bear interest at an annual rate of 8.5 percent, compounded monthly. If you leave ethnio code live on your site, but do not pay the monthly fees, Ethnio has the right to bill for any outstanding fees as a result of traffic sent to our servers. You further agree to pay Ethnio the full costs of collecting any past due amounts, including Ethnio’s legal fees and costs, including the costs of arbitration detailed in Section 12 below.
As a Customer, You have to pay for fair use of Ethnio, including live code. You may cancel at any time from Your account, and contact Ethnio to discuss a refund. Please note that payments for incentives are never eligible for refunds. Once the payment is received via invoice or credit card, Customer must use any funds associated with that payment within Ethnio or forfeit access to those funds.
For any permanently cancelled Customer account, Ethnio will automatically and permanently wipe all customer data from all servers within 24 hours of account deletion, including backup servers and sub-processors. Customer will receive email notification immediately upon deleting their account.
If Customer has an active incentives balance at time of cancelation, and those funds are not required to pay for ordered incentives, Ethnio shall return any remaining funds no later than thirty (30) days after the date of termination via company check or wire transfer.
Ethnio does not provide any support for Customers using the free Service. Paying Customers can contact Ethnio and open a ticket on our Zendesk support site [http://help.ethn.io/]. Ethnio does not offer any support for implementation conflicts, if all core Ethnio functionality is functioning properly. In other words, if there is a problem with the Screener displaying on Your site, and we verify everything is working right on the Ethnio side, You are solely responsible for solving implementation conflicts. Paid support is available upon request to help with implementation.
Customer agrees that Ethnio may use Customer's company name and logo on Ethnio's Platform, website, social media, marketing materials and to promote service in any way. Customer also agrees that Ethnio may showcase publicly available screener designs, themes, and any other public use of Ethnio.
g. Account Sharing & Team Accounts
Customer agrees to never share their Ethnio account login, and Ethnio is not responsible for any security breach that results from Customer sharing their account login. Team Accounts must be used by individuals residing within the same organization. A Team Account is sometimes referred to as a “seat license.” Customer will ensure Team Account holders (a) comply with these terms; (b) do not share login details and passwords; (c) use the Platform and Services in compliance with all applicable laws, rules and regulations; and (d) do not permit direct or indirect access to the Platform and/or Services in a way that circumvents a contractual license limit. Customer will be liable for any login-sharing or unauthorized access caused by the negligence or willful misconduct of a Seat License holder (including Customer employees, subcontractors, and/or agents who are sharing access under one Team Account)
5. Acknowledgment of Rights and License Limitations
Without limitation to any right or obligation put forward in Section 6, You hereby acknowledge and agree that:
a. Designation of Confidential Trade Secrets:
“Trade Secret” means, without limitation, any technical information, design, process, procedure, formula, or improvement included in or related to the Services. Without limitation, this includes the following features of Ethnio: Dynamic screener functions, Real-time participant visualization techniques, Proprietary algorithms, Front-end scheduling functionality, Demographic detection techniques, Processing optimization techniques, and Features essential to the Respondent and/or Customer experience of Ethnio.
b. Restrictions on Trade Secrets
Ethnio and its successors and assigns, possess the exclusive right, license, and privilege to develop, produce, reproduce, manufacture, distribute, export, import, promote, advertise, market, rent, sell, and exploit any and all Trade Secrets defined in this Section.
c. Reservation of Proprietary Rights
Ethnio and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks and service marks associated or displayed with the Services. You will not remove, deface, or obscure any of Ethnio’s or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services.
d. Ethnio’s Exclusive Rights Under the Copyright Act
Without limitation, Ethnio does not grant You an adaptation right to prepare derivative works based upon the Website and Services, and You agree that it will not prepare derivative works. The code constituting the Website and Services is a literary work subject to copyright protection. The audiovisual display on the Website is subject to copyright protection as well.
e. Limited License and Automatic Termination
You are a licensor who does not own copies of Ethnio. Without limitation, Your license is revoked automatically any time that the You violate, or assist any other person or company in violating, the license limitations set forth in this Agreement. You are not authorized to exploit its license for commercial purposes in any way not otherwise expressly set forth herein or in signed writings between the Parties.
f. This Section Shall Not Be Construed To Restrict Lawful Use of Information
This Section shall not be construed as restricting or prohibiting any party from using any information that (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by You.
6. No Reverse Engineering
You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Services. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Services by any means whatsoever, directly or indirectly, or disclose any of the foregoing. Any information supplied by Ethnio or obtained by You, as permitted hereunder, may only be used by You for the purpose described herein and may not be disclosed to any third party or used to create any software or Services which is substantially similar to the expression of Ethnio’s services, including software.
7. Export Restrictions
You acknowledge that the Services, or any portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
You also agree to comply with applicable United States export laws and regulations regarding the transmission of technical data exported from the United States through the Services, and agree not to: (1) use the Services in connection with chain letters, junk mail, surveys, contests, pyramid schemes, or any use of distribution lists to any person who has not given specific permission to be included in such a process (commercial or otherwise); (2) harvest or otherwise collect information about others, including e-mail addresses, without their consent; (3) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a user of the Services any directory of other users or usage information or any portion thereof other than in the context of Your use of the Services; (4) knowingly interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks; (5) attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means; or (6) use the Services for illegal purposes (including without limitation, gambling or betting).
8. Injunctive Relief
You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sub-licensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Ethnio, its affiliates, suppliers and any other party authorized by Ethnio to resell, distribute, or promote the Services ("Resellers"), and under such circumstances Ethnio, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
9. Violations of Terms and Liquidating Damage
Please report any violations of these Terms and Conditions by emailing firstname.lastname@example.org. Our failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches.
10. No Warranties
You understand and agree that the services are provided "as is" and Ethnio, its affiliates, suppliers and resellers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. Ethnio, its affiliates, suppliers and resellers make no warranty or representation regarding the results that may be obtained from the use of the services, regarding the accuracy or reliability of any information obtained through the services, regarding any goods or services purchased or obtained through the services, regarding any transactions entered into through the services or that the services will meet any user's requirements, or be uninterrupted, timely, secure or error free. Use of the services is at Your sole risk. Any material and/or data downloaded or otherwise obtained through the use of the services is at Your own discretion and risk. You will be solely responsible for any damage to You resulting from the use of the services. The entire risk arising out of use or performance of the services remains with You. You agree to indemnify, defend and hold harmless Ethnio, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Ethnio, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
11. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Ethnio or its affiliates, suppliers or resellers be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or damage) arising out of the use of or inability to use the Services or the provision of or failure to provide technical or other support services, whether arising in tort (including negligence), contract or any other legal theory, even if Ethnio, its affiliates, suppliers or resellers have been advised of the possibility of such damages. In any case, Ethnio's, its affiliates', suppliers' and resellers' maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this agreement will be limited to the amount actually paid by You for the Services (if any) in the previous 12 months. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
a. Incentive Management & Expiration
Incentives paid using the Ethnio Incentive system are the sole responsibility of the Customer. Incentives paid using the Ethnio incentive feature are subject to the terms of each payment provider, which can change without notice to the customer.
As a Customer, you understand once funds are spent on Ethnio Incentives, there are no cancellations or refunds for any reason. Customer bears responsibility for any fraud that may occur due to breach of an account or any scenario where Customer's incentive funds are spent with or without their knowledge or consent. Customer agrees to hold Ethnio harmless for any Incentive spending that is not authorized, or any damages that might occur as a result of Incentive spending.
As a Respondent, You agree that You are solely responsible for claiming all Incentives within six (6) months of the date of their issue to You. After this six-month period, all unclaimed Incentives will expire.
b. Choice of Law and Forum; Joinder
This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. The parties agree that any dispute arising out of or concerning this agreement, or otherwise concerning to Ethnio, shall be resolved by binding arbitration by the Judicial Arbitration and Mediation Service in Los Angeles.
You further agree that (1) You will not join any claim You may have against Ethnio with that of any other person or entity in an arbitration or other legal proceeding, (2) no claim brought by You or Ethnio relating to this Agreement, the Website, or Services will be resolved on a class-wide basis, and (3) that neither You nor Ethnio will assert a claim in a representative capacity on behalf of anyone else. This agreement to arbitrate will not preclude either You or Ethnio from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either you or Ethnio from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, to preserve the intellectual property rights of You, Ethnio or third parties. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN LOS ANGELES COUNTY, CALIFORNIA; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
c. Waiver and Severability
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
d. General Provisions
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Ethnio may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to Ethnio under this Agreement must be sent to [email@example.com], or other address as provided by Ethnio for such purpose. Any and all rights and remedies of Ethnio upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Ethnio, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.