September 29, 2017 DRAFT
J.D. Power Respondent Terms & Conditions
Notice: J.D. Power’s Respondent Terms and Conditions have been updated as of 09-29-17.
[BY DOWNLOADING ANY APPLICATION YOU ARE CONSENTING TO OUR COLLECTION AND USE OF PERSONAL INFORMATION (“PII”) AND OTHER INFORMATION YOU PROVIDE, AND TO THE USE OF AUTOMATICALLY COLLECTED INFORMATION, INCLUDING BUT NOT LIMITED TO THE LOCATION OF YOUR MOBILE DEVICE AS SET FORTH IN OUR PRIVACY AND COOKIE NOTICE. IF YOU DO NOT WANT SUCH INFORMATION COLLECTED, YOU SHOULD NOT DOWNLOAD THE APPLICATION. YOU CAN STOP ALL COLLECTION OF INFORMATION BY UNINSTALLING THE APPLICATION. BY ACCESSING, DOWNLOADING AND USING THE APPLICATION, YOU ARE LEGALLY BOUND BY THESE TERMS.]
These respondent terms and conditions (“Terms”) govern and apply to your use of the services provided by J.D. Power, f/k/a/ J.D. Power and Associates (“JDP” or “we”).
Such services include without limitation: (i) any survey or study offered, provided, hosted, or administered by or through JDP (“Survey”); (ii) any product testing, whether in-home or in-store, offered, provided, hosted, or administered by or through JDP (“Product Testing”); (iii) any JDP mobile application (“Application”); (iv) your eligibility for and/or redemption of any rewards, incentives, sweepstakes and prizes (collectively, “Rewards”) offered for certain actions and activities, including but not limited to successfully completing a Survey or Product Testing; and (v) any other services offered, provided, hosted, or administered by or through JDP (collectively, and inclusive of all defined terms in this paragraph, the “Services”).
If you participate in the Services, JDP will use your information to help our clients better understand your needs and preferences. You acknowledge and agree that nothing in these Terms creates any obligation on the part of JDP to communicate with any manufacturers, retailers, or other third parties whose products/services are the subject of a Survey or Product Testing. We are not responsible for repairing, replacing, or improving any such product or service, and it is your responsibility to communicate with such third parties directly for those purposes. Please see Section 2 below (“Use of the Services”) and the Privacy and Cookie Notice for more information about our use of your information.
All references in these Terms to JDP include J.D. Power and its parents, subsidiaries, and affiliates. By registering for, accessing, using, and/or participating in the Services, you hereby expressly agree to comply with and be bound by these Terms. JDP reserves the right to refuse, restrict, prohibit, or reject your access to, use of, and/or participation in the Services, at any time and for any reason.
The Services are strictly for your personal, non-commercial use. You may use the Services only when and as available. No individual under the age of thirteen (13) may access, use, or participate in the Services without the prior written consent of a parent or guardian. As a general rule, JDP also requires consent of a parent or guardian if you are under the age of eighteen (18), but may, at its sole discretion, make exceptions from time to time.
2. Use of the Services
You acknowledge and agree that participation in the Services is voluntary. By participating in the Services, you agree to receive invitations to participate in the future. Additionally, JDP may provide you with the opportunity to communicate with other respondents and/or JDP. For more information on how to unsubscribe from these or other JDP communications at any time, see Section 8 (“Opt Out Policy”) below.
As part of your access to, use of, and/or participation in Services, you may be required to disclose certain personally identifiable information (“PII”) to JDP. If such disclosure is necessary, you agree to provide truthful information. You acknowledge and agree that JDP will fully cooperate with all legal disclosure requests (e.g., a court order or subpoena), including those related to your PII. Please review JDP’s Privacy and Cookie Notice for more information on JDP’s privacy practices.
You acknowledge that you are accessing, using, and/or participating in the Services in the capacity of an independent contractor and that no agency, partnership, join venture, employee-employer, or franchisor-franchisee relationship is intended or created by these Terms.
3. Unauthorized Uses
You agree not to: (i) use spiders, robots or other automated data mining techniques to catalogue, download, store, or otherwise reproduce or distribute data or content available in connection with the Services, or to manipulate the results of any Survey, Product Testing, or Rewards (as defined herein); (ii) take any action to interfere with any Website or Application, or an individual’s use of any Website or Application, including but not limited to by overloading, “flooding”, “mail bombing”, or “crashing” any Website or Application; (iii) send or transmit any viruses, corrupted data, or any other harmful, disruptive, or destructive code, file, or information, including but not limited to spyware; (iv) collect any PII of or about any other user of the Services; (v) send unsolicited emails to JDP or any other user of the Services, including but not limited to promotions and/or advertising of products or services; (vi) forge or mask your true identity; (vii) frame any portion of any Website or Application within another website or application, or alter the appearance of any Website or Application; (viii) establish links from any other website to any page of, on, or located within any Website or Application, or establish links from any other website to the Services, without the prior express written permission of JDP; (ix) post or transmit any threatening, libelous, defamatory, obscene, pornographic, lewd, scandalous, or inflammatory material or content, or any material or content that could otherwise violate Applicable Laws (as defined below); (x) engage in any fraudulent activity, including but not limited to speeding through any Survey or Product Testing, taking the same Survey or engaging in the same Product Testing more than once, masking or forging your identity, submitting false information to JDP, submitting false or untrue Survey or Product Testing data, redeeming or attempting to redeem any Reward through false or fraudulent means, or tampering with any Survey or Product Testing materials; (xi) reverse engineer any aspect of the Services; (xii) take any action that might reveal or disclose the source code of any Website or Application; (xiii) bypass or circumvent measures or controls utilized to prohibit, restrict, or limit access to any content or code; (xiv) engage in any criminal or illegal act; (xv) use Restricted Content (as defined herein) in violation or breach of these Terms; or (xvi) encourage and/or advise any individual, including but not limited to any JDP employee, to commit any act prohibited hereunder.
4. Restricted Content
In connection with your use of, access to, and/or participation in the Services, you may have the opportunity to review or access confidential and proprietary information, materials, products, and content (“Restricted Content”) belonging to JDP or JDP’s clients, partners, or licensors. Restricted Content is and shall remain the sole and exclusive property of the owner of the Restricted Content. In no event shall you obtain or receive any right, title, or interest in or to any Restricted Content. You agree to protect the confidentiality and secrecy of the Restricted Content, and you agree not to modify, copy, reproduce, republish, display, transmit, distribute, reverse engineer, create derivative works of, decompile, or otherwise use, alter, or transfer Restricted Content without the prior express written consent of JDP. You acknowledge and agree that Restricted Content may be subject to, and protected by, intellectual property laws, regulations, and codes. You further acknowledge and agree that if you breach or otherwise violate the restrictions, limitations, and prohibitions contained in this Section 4, in addition to any other rights or remedies available to JDP, JDP reserves the right to terminate, prohibit, or restrict your use of, access to, and/or participation in the Services.
Additionally, and without limiting the foregoing, you acknowledge and agree that JDP considers any research conducted for JDP and the information that is related to that research, including but not limited to any Surveys, Product Test materials, questionnaires, and the responses of you or any other respondent (collectively, the “Research”), to be Restricted Content. In consideration of your being permitted to participate in the Research, you agree that: (i) you will not disclose the Research, including your responses and comments and any ideas that are discussed and/or generated as a result of your participation in the Research (collectively, “Your Responses”), to anyone other than JDP; (ii) you will not, unless expressly permitted by JDP, use any audio and/or visual recording devices during Research; (iii) all right, title, and interest in the Research and the results thereof, including, for example, all copyrights, trademarks, patents, and other intellectual property rights, are owned by JDP, and JDP has not granted you any right, title, or interest in the Research or the results thereof, or any portion of either; (iv) if ownership of Your Responses does not for any reason vest in JDP, you then irrevocably transfer and assign all of your right, title, and interest in Your Responses to JDP; and (v) JDP may, in any manner that it desires, use Your Responses as it sees fit, including but not limited to sharing Your Responses with others.
5. User Content
You may post, upload or submit images, photos, audio, video and/or other types of content in connection with the Services (“User Content”). For avoidance of doubt, “User Content” does not include Your Responses. You are solely responsible for all User Content, including all third party approvals, consents, and authorizations required for User Content. If you submit User Content, the User Content may become publicly available and may be shared with third parties including but not limited to JDP’s clients, clients of JDP’s clients, and third party service providers. User Content should not contain copyrighted or trademarked content or material of any third party or audio, video, images, or the likeness of anyone other than the user. You will not receive compensation for User Content.
You remain the owner of your User Content. By using, uploading, posting, or submitting User Content in connection with the Services, you hereby grant to JDP (and/or the clients of JDP) a perpetual, irrevocable, unlimited, transferrable, sub-licensable, world-wide, royalty free right and license to edit, copy, transmit, publish, display, create derivative works of, reproduce, distribute, and otherwise use, modify, or distribute your User Content in any manner, without compensation or notice.
You are solely responsible for User Content. JDP does not and cannot review all User Content. JDP reserves the right to delete, move, or edit User Content that is, in JDP’s sole discretion, deemed to: (i) violate these Terms; (ii) violate copyright or trademark laws; or (iii) be abusive, defamatory, obscene, or otherwise unacceptable.
In connection with your use of the Services, you may have the opportunity to accumulate Rewards. Rewards may be in the form of cash, gift cards, coupons, discounts, sweepstakes entries, prize drawing entries, or other items of value. Information, official rules, and terms and conditions governing any Rewards may be described in these Terms, on the Websites, at the beginning or end of a Survey or Product Testing materials, in Survey or Product Testing invitations, on websites or webpages designated for redeeming Rewards, and/or in any newsletter or other communication distributed or published by JDP.
JDP may modify, alter, delete, or add new terms and conditions related to any Reward at any time without notice. For JDP this includes but is not limited to modifying, altering, adding, or deleting available Rewards, and modifying, altering, adding, or deleting any conditions for earning incentives or rewards, at any time without notice. In addition, JDP may terminate or cease offering any Reward in connection with the Services, at any time without notice.
JDP makes no representations or warranties of any kind, express or implied, regarding any product or service received in connection with Rewards, including but not limited to any warranty of merchantability or fitness for a particular purpose. JDP is not, and will not be, liable or responsible for the performance or failure of any product or service given to you as, or redeemed with, a Reward, or for any cost, damage, accident, delay, injury, loss, expense or inconvenience that may arise in connection with such product or service. JDP will not replace any lost, stolen, misplaced, or damaged Rewards.
The suppliers or providers of any products or services offered in connection with Rewards, and/or the owners or operators of the any website(s) on which you redeem any Reward, may have their own terms and conditions. Please review these terms and conditions carefully.
PII may have to be collected, processed, and/or disclosed in connection with a Reward program and/or any request to redeem a reward or incentive. By agreeing to these Terms, you hereby agree to the collection, processing, and/or disclosure of your PII for such purposes, and all such PII shall be subject to the terms set forth in JDP’s Privacy and Cookie Notice.
YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY REWARDS EARNED THROUGH THE SERVICES MAY BE SUBJECT TO TAXES, AND THAT SUCH TAXES ARE SOLELY YOUR RESPONSIBILITY.
JDP may provide you and/or the appropriate government agency or taxing authority with information related to any Rewards you earn in connection with the Services. You agree to provide JDP with all required information to assist JDP in complying with its reporting or withholding obligations. JDP may withhold any tax from any Reward as required by applicable law.
In the United States, if you receive Rewards the total value of which equals or exceeds $600 in any tax year, you will be required to furnish your taxpayer identification number or complete and return a W-9 form before the awarding of any Reward to comply with IRS tax reporting requirements. JDP has an obligation to file a 1099-Misc form with the United States Internal Revenue Service for such payments. In addition, you will be provided a completed 1099-Misc form for your tax compliance purposes. If you have received Rewards of $600 or more during a tax year, and fail to provide your taxpayer identification number or complete and return a W-9 form JDP or its agent has sent you, you may not be eligible to receive further Rewards, regardless of when they were earned, unless and until you provide JDP or its agent with the completed and verified W-9 form or your taxpayer identification number.
8. Opt-Out Policy
You may opt out of the Services (including, without limitation, from receiving newsletters or communications) at any time by: (i) following the unsubscribe procedures described on the applicable Website or contained in any email received from JDP; or (ii) sending an email to firstname.lastname@example.org. JDP shall use reasonable efforts to read and respond to each email request within a reasonable period of time after receipt. Please allow a few days for the processing of opt-out requests, during which period you may receive communications which were created or compiled prior to your opting out. Please see JDP’s Privacy and Cookie Notice for information on how JDP handles information and data following an unsubscribe or opt-out request.
In connection with your use of the Services, you may be able to link or connect voluntarily to websites maintained and/or operated by third parties (“Third Party Websites”). JDP does not endorse any Third Party Website nor any products, services, or opportunities advertised, offered, or sold by, through, or in connection with any Third Party Website (“Third Party Information”). JDP does not make any representations or warranties regarding Third Party Websites or third party information. Please carefully review all policies and terms applicable to Third Party Websites.
10. Communications with JDP
Except for PII and Your Responses, all communications and User Content submitted or transmitted by you to JDP, by electronic mail or otherwise, shall be treated as non-confidential and non-proprietary information, unless specifically indicated by you either prior to, or contemporaneously with, the submission or transmission of such communications and User Content. You agree that any such communications and User Content may be used by JDP for any legal reason.
THE SERVICES, INCLUDING ALL INFORMATION, SURVEYS, PRODUCT TESTING, CONTENT, MATERIAL, AND COMMENTARY MADE AVAILABLE ON OR THROUGH THE SERVICES, ARE PROVIDED “AS IS”, AND JDP DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER IN CONNECTION WITH ANY SUCH INFORMATION, SURVEYS, PRODUCT TESTING, CONTENT, MATERIAL, AND COMMENTARY.
FURTHER, JDP HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. JDP DOES NOT WARRANT THAT: (I) THE TOOLS, TECHNOLOGY, OR FUNCTIONS CONTAINED IN THE SERVICES (OR INFORMATION, SURVEYS, PRODUCT TESTING, CONTENT, MATERIAL, OR COMMENTARY CONTAINED THEREIN) WILL BE UNINTERRUPTED OR ERROR FREE; (II) DEFECTS WILL BE CORRECTED, THAT THE SYSTEMS OR THE SERVER(S) THAT SUPPORT THE SERVICES AND MAKE THE SERVICES AVAILABLE WILL BE CORRECTED; (III) THE SERVICES AND/OR THE SYSTEMS AND/OR THE SERVER(S) THAT SUPPORT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE SERVICES OR ANY JDP APPLICATION WILL NOT HAVE ANY HARMFUL EFFECT ON YOUR COMPUTER OR YOUR MOBILE DEVICE.
JDP DOES NOT PROVIDE ACCESS OR CONNECTION TO THE INTERNET AND IS NOT AND SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACTIONS OR OMISSIONS OF THIRD PARTIES THAT INTERFERE WITH, LIMIT, RESTRICT, OR PREVENT ACCESS OR CONNECTION TO, OR USE OF, THE SERVICES. JDP SHALL HAVE NO OBLIGATION TO COMMUNICATE WITH ANY MANUFACTURERS, RETAILERS, OR OTHER THIRD PARTIES WHOSE PRODUCTS/SERVICES ARE THE SUBJECT OF A SURVEY OR PRODUCT TESTING. JDP IS NOT RESPONSIBLE FOR REPAIRING, REPLACING, OR IMPROVING ANY SUCH PRODUCTS OR SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
JDP hereby reserves the right, in JDP’s sole discretion, to make changes to these Terms. JDP encourages you to review these Terms on an ongoing basis. JDP will obtain your consent prior to changes that are of such nature that consent is needed or required. For changes that do not require consent, your continued use of, access to, and/or participation in the Services does and will constitute your acceptance of these Terms as amended.
You agree to indemnify, defend, and hold harmless JDP, including its parents, affiliates, and subsidiaries (and their respective members, managers, shareholders, directors, officers, employees, and agents), from and against any and all claims, liabilities, losses, judgments, awards, fines, penalties, costs, and/or expenses of any kind, including but not limited to reasonable attorneys’ fees and court costs, arising out of, resulting from, or caused, either directly or indirectly, by: (i) your breach or violation of these Terms; and/or (ii) your use of, participation in, and/or access to the Services.
14. Limitations of Liability
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL JDP BE LIABLE OR OTHERWISE RESPONSIBLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES, FOR ANY REASON(S) OR FOR ANY CAUSE(S), REGARDLESS OF WHETHER JDP IS INFORMED OF THE POSSIBILITY THAT SUCH DAMAGES MAY EXIST.
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES AND/OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
15. Compliance with Applicable Laws
You acknowledge and agree that you will comply with all applicable international, national, federal, state, and local laws, codes, regulations, rules, and requirements (“Applicable Laws”) regarding your use of, participation in, and/or access to the Services.
16. JDP Employees
JDP employees and their Immediate Family Members (as defined herein) are not eligible to receive any Rewards for using, participating in, or accessing the Services. For the purpose of this Section 16, the term “Immediate Family Members” includes parents, spouses or spousal equivalents, domestic partners, children, girlfriends, and boyfriends.
JDP employees may use, access, or participate in the Services only after receiving written permission from their respective manager, and only for the sole purpose of improving the Services. JDP’s employees must always be honest and report accurate information in connection with using, accessing, or participating in the Services.
Except as otherwise set forth herein or as required by Applicable Laws, all notices to be sent or provided to JDP should: (i) be correctly addressed to the address below, and shall be sufficiently delivered if delivered (a) by Federal Express, Express Mail, or other nationally or internationally recognized overnight courier service (in which case notice shall be effective one (1) business day following dispatch), or (b) by certified mail, return receipt requested, postage prepaid (in which case notice shall be effective six (6) days following deposit in mail); or (ii) be sent via email to the email address below.
3200 Park Center Drive, 13th Floor
Costa Mesa, California 92626
Attn: Legal Department
Except as otherwise required by Applicable Laws, you agree that JDP may provide notices to you: (i) via the e-mail address provided by you to JDP (in which case notice shall be effective one (1) day following the date the e-mail was sent, provided that JDP did not receive an error message stating that delivery of the e-mail was delayed, that the e-mail address was invalid, or that the e-mail otherwise could not be delivered); (ii) by certified mail, return receipt requested, postage prepaid, addressed to the address provided by you to JDP (in which case notice shall be effective six (6) days following deposit in the mail); or (iii) by posting notices on the applicable Website. You agree to check the applicable Website frequently for notices and to keep your PII up-to-date.
If any term or provision of these Terms shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such term or provision shall be deemed null and void and shall not affect the application and/or interpretation of these Terms. The remaining terms or provisions of these Terms shall continue in full force and effect, as if the invalid or unenforceable term or provision was not a part of these Terms.
These Terms and your access to, use of, and/or participation in the Services shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to any portion of any choice of law principles (whether those of California or any other jurisdiction) that might provide for application of a different jurisdiction’s laws. All claims or disputes arising in connection with these Terms and/or your access to, use of, or participation in the Services shall be subject to the exclusive jurisdiction of the state or Federal courts located in Orange County, California, USA to the extent it is not subject to arbitration under Section 20.
20. Arbitration Agreement
At JDP’s sole discretion, it may require you to submit any disputes arising from the use of these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law.
YOU AND JDP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and JDP agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
If this Section 20 is invalidated in whole or in part, you and JDP agree that the exclusive jurisdiction and venue described in Section 19 (“Disputes”) shall govern any claim in court arising out of or related to the Terms.
21. Miscellaneous Terms
The headings contained in these Terms are for reference only and shall have no effect on the interpretation and/or application of these Terms. JDP’s failure to enforce a breach by you of these Terms shall not waive or release you from such breach and shall not waive, release, or prevent JDP from enforcing any subsequent breach by you of these Terms. These Terms and any rules, terms, or policies referenced herein or incorporated herein, and any requirements specific to a Survey or Product Testing, represent the entire understanding and agreement between JDP and you with respect to the subject matter hereof.