Thanks for using Jinglz Inc.’s products, services, websites, and app some of which are branded and doing business as “EmotionTrac” and EmotionTrac’s Services (collectively “Services”).
1. Fees and Payments
1.1. Fees for Services.
You agree to pay EmotionTrac for each Campaign or Service purchased or used, in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you enter at the time of purchase. Your credit card statement may reflect Jinglz, Inc. as the merchant. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify EmotionTrac of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms and contracts between you and Jinglz, Inc. dba EmotionTrac.
Prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.
(a) United State Sales Tax. If we have a legal obligation to pay or collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which may be the highest prevailing rate then in effect, if your billing information is incomplete or inaccurate), unless you provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
EmotionTrac will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including the EmotionTrac privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms, by EmotionTrac); (b) was lawfully known to EmotionTrac before receiving it from you; (c) is received by EmotionTrac from a third- party without knowledge of breach of any obligation owed to you; (d) is shared in the context of your account being migrated to an organization’s Enterprise account, if your account is registered using a work email address within that organization; or (e) was independently developed by EmotionTrac without reference to your Content. EmotionTrac may disclose your Content when required by law or legal process, but only after EmotionTrac, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
EmotionTrac will store and process your Content in a manner consistent with industry security standards. EmotionTrac has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
If EmotionTrac becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (“Security Incident”), EmotionTrac will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. EmotionTrac will also reasonably cooperate with you with respect to any investigations relating to a Security Incident to prepare any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by EmotionTrac.
3.1. You Retain Ownership of Your Content.
You retain ownership of all of your intellectual property rights in your Content. EmotionTrac does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. Limited License to Your Content.
You grant EmotionTrac a worldwide, royalty-free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, for the limited purposes of providing the Services to you and as otherwise permitted by the EmotionTrac privacy policies. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of EmotionTrac’s business. This license also extends to any trusted third-parties we work with to the extent necessary to provide the Services to you. If you provide EmotionTrac with feedback about the Services, we may use your feedback without any obligation to you.
3.3. Advertising Customers.
EmotionTrac may identify you (by name and logo) as a Jinglz and EmotionTrac Services customer on EmotionTrac and/or Jinglz’s website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
3.4. Copyright Claims (DCMA Notices).
EmotionTrac Inc. responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify EmotionTrac’s agent for claims of copyright infringement. Please review our complete DMCA Policy, herein incorporated by reference, for further information and instructions relating to our DMCA takedown process and procedures.
4.1. EmotionTrac IP.
Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content).
5.1. User Content.
The Services display content provided by others that is not owned by EmotionTrac. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. EmotionTrac is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
5.2. Content Review.
You acknowledge that, in order to ensure compliance with legal obligations, EmotionTrac may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law, industry standards, or these Terms. However, EmotionTrac otherwise has no obligation to monitor or review any content submitted to the Services.
5.3. Third Party Resources.
EmotionTrac may publish links in its Services to internet websites maintained by third parties. EmotionTrac does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
6.1. Keep Your Password Secure.
If you have been issued an account by EmotionTrac in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not EmotionTrac, are responsible for any activity occurring in your account (other than activity that EmotionTrac is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify EmotionTrac immediately. Accounts may not be shared and may only be used by one individual per account.
6.2. Keep Your Details Accurate.
EmotionTrac occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
6.3. Remember to Backup.
You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, EmotionTrac will not be liable for any failure to store, or for loss or corruption of your Content.
6.4. Account Inactivity.
EmotionTrac may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
7.1. Legal Status.
If you are an individual, you may only use the Services if you have the power to form a contract with EmotionTrac. If you do not have the power to form a contract, you may not use the Services. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms.
“Minors” are individuals under the age of 18. None of the Services are intended for use by Minors. If you are a Minor in your place of residence, you may not use the Services. By using the Services, you represent and warrant that you are not a Minor.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from EmotionTrac. You will ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any of the above lists.
8.1. Legal Compliance.
You represent and warrant that you will comply with all laws, regulations, and industry standards applicable to your use of the Services.
8.2. Your Responsibilities.
You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
(a) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(c) You may not circumvent or attempt to circumvent any limitations that EmotionTrac imposes on your account (such as by opening up a new account to conduct a survey that we have closed for a Terms violation).
(d) Unless authorized by EmotionTrac in writing, you may not probe, scan, or test the vulnerability of any EmotionTrac system or network.
(e) Unless authorized by EmotionTrac in writing, you may not use any manual or automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.
(f) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
(g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
(h) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. EmotionTrac will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to EmotionTrac.
(i) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
(j) Unless authorized by EmotionTrac in writing, you may not resell or lease the Services.
(k) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless EmotionTrac has agreed with you otherwise. You may not use the Services in a way that would subject EmotionTrac to those industry-specific regulations without obtaining EmotionTrac’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with EmotionTrac that permits you to do so.
(l) You may not register accounts by “bots” or other automated methods.
(m) Your Content and use of the Services may not violate our Content Policy.
(n) No part of the video content may be reproduced or transmitted in any form or by any means, electronic, mechanical, or verbally, including photocopying, recording or any information storage and retrieval system, without permission in writing from the publisher, producer, or creator and by YaleInsights. Any reproduction or illegal distribution of the content in any form will result in immediate action against the person concerned. Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted materials. Copyright infringement is investigated by the FBI and may constitute a felony.
We utilize service provider that are compliant with the Payment Card Industry Data Security Standards (the “PCI Standards”).
10.1. By You.
You can terminate your account at any time through your account management page. Such termination will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. For clarity, we will not grant a refund where you have used our Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.
10.2. By EmotionTrac.
EmotionTrac may suspend performance or terminate your Account for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after EmotionTrac has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, EmotionTrac may limit, suspend, or terminate the Services to you: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from that Service. However, there may be time sensitive situations where EmotionTrac may decide that we need to take immediate action without notice. EmotionTrac will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. EmotionTrac has no obligation to retain your Content upon termination of the applicable Service.
10.3. Further Measures.
If EmotionTrac terminates your account or otherwise stops providing the Services to you because you repeatedly or egregiously breach these Terms, EmotionTrac may take measures to prevent the further use of the Services by you, including blocking your IP address.
11.1. Changes to Terms.
EmotionTrac may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the EmotionTrac website. If an amendment is material, as determined in EmotionTrac’s sole discretion, EmotionTrac will notify you by email. Notice of amendments may also be posted to EmotionTrac’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require EmotionTrac to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
11.2. Changes to Services.
EmotionTrac constantly changes and improves the Services. EmotionTrac may add, alter, or remove functionality from a Service at any time without prior notice. EmotionTrac may also limit, suspend, or discontinue a Service at its discretion. If EmotionTrac discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. EmotionTrac may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
While it is in EmotionTrac’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND EmotionTrac DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
12.2. Exclusion of Certain Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EmotionTrac, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF EmotionTrac HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF EmotionTrac ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO EmotionTrac FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$200.00.
We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
If you are a business, you will indemnify and hold harmless EmotionTrac and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) (“Indemnification Amounts”) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.
If you are any kind of user, you will indemnify and hold Indemnified Entities harmless from any Indemnification Amounts arising out of a breach of your obligation in Section 1.3 to ensure your tax exemption certificate, if any, accurately reflects your current tax status.
13.1. Who you are contracting with.
Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Jinglz, Inc dba EmotionTrac.
For any Service provided by EmotionTrac, the following provisions will apply to any terms governing that Service:
You may not assign these Terms without EmotionTrac’s prior written consent, which may be withheld in EmotionTrac’s sole discretion. EmotionTrac may assign these Terms at any time without notice to you.
14.2. Entire Agreement.
These Terms (including the Additional Terms) constitute the entire agreement between you and EmotionTrac, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
14.3. Independent Contractors.
The relationship between you and EmotionTrac is that of independent contractors, and not legal partners, employees, or agents of each other; the Parties will so represent themselves in all regards.
This Agreement will not be construed in favor or against either party by reason of authorship. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
14.5. No Waiver.
A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
14.7. Third Party Beneficiaries.
There are no third party beneficiaries to these Terms.
The following sections will survive the termination of these Terms: 1, 2, 3.2, 10, 12, 13, 14, 15, 16, and 17.
Date of Last Revision: September 23, 2019
EmotionTrac DMCA POLICY
Jinglz, Inc. D/B/A EmotionTrac (“EmotionTrac”) respects the intellectual property rights of others and expects its visitors, participants, and clients to do the same. In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, and specifically in accordance with 17 USC § 512(c)(3), EmotionTrac will respond expeditiously to claims of copyright infringement committed using the EmotionTrac’s Service, App, and/or any website (the “Site”) if such claims are reported to EmotionTrac’’s Designated Copyright Agent identified below.
Before submitting a DMCA notice, it’s important to consider if the manner in which the material is used falls under fair use. You are required to give consideration to whether a use of material is fair before submitting a takedown notification. If you are not sure whether material infringes your copyright, or if it is subject to fair use protections, you should first consider seeking legal advice.
Please be advised that under Section 512(f) of the DMCA, you “shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
DMCA Notice of Alleged Infringement (“Notice”) If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing a DMCA Notice of Alleged Infringement and delivering it to EmotionTrac’s Designated Copyright Agent. Upon receipt of Notice as described below, EmotionTrac will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Site. Please note that if you fail to comply with all of the requirements of this section and of 17 USC § 512(c)(3) your DMCA notice may not be valid.
Copyright Agent Jinglz, Inc. D/B/A EmotionTrac P.O. Box 743041 Boynton Beach, FL 33474 [email protected]
DMCA Counter-Notice of Alleged Infringement If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright holder, the holder’s agent, or pursuant to law, to post and use the material in your content, you may send a Counter-Notice containing the following information to EmotionTrac’s Copyright Agent:
EmotionTrac Policy Regarding Repeat Infringers EmotionTrac does not condone or tolerate copyright infringement or any violation of the intellectual property rights of EmotionTrac or of others. EmotionTrac reserves the right to terminate the access and/or use privileges of any person who has been determined to be a ‘repeat infringer’ of the copyrights of EmotionTrac or others. EmotionTrac reserves the right to define the criteria by which EmotionTrac will determine that a person is a ‘repeat infringer.’ In the event that repeat infringer’ is defined by statute, law, or regulation as applicable to 17 USC § 512, EmotionTrac will adopt that definition as a minimum standard. Without limiting EmotionTrac’s right to define ‘repeat infringer,’ as a general rule, EmotionTrac will define a ‘repeat infringer’ as any person or entity about whom EmotionTrac has received two or more DMCA Notices of Alleged Infringement. EmotionTrac will take into account all relevant facts and circumstances when determining whether or not termination of access and/or use privileges of a ‘repeat infringer’ is appropriate.
REGARDLESS OF WHETHER EmotionTrac TERMINATES ACCESS AND/OR USE PRIVILEGES OF ANY PERSON OR ENTITY, ‘REPEAT INFRINGER’ OR OTHERWISE, EmotionTrac IN NO WAY WAIVES ANY RIGHT TO PURSUE ANY AVAILABLE REMEDY AT LAW OR IN EQUITY AGAINST COPYRIGHT INFRINGERS OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS VIOLATORS, NOR WILL EmotionTrac INDEMNIFY OR PROVIDE LEGAL REPRESENTATION TO ANY ALLEGED INFRINGER IN ANY ACTION ARISING FROM THE ALLEGED INFRINGER’S USE OF ANY EmotionTrac WEBSITE OR SERVICE, EXCEPT AS EXPRESSLY DESCRIBED IN THIS NOTICE.
EmotionTrac is a self-serve software platform that empowers brands, ad agencies, lawyers, consumer insights and any market researcher to deploy on-demand focus group tests that produce true quantitative data for emotional reaction and engagement with video content in multiple billion-dollar markets.