Lucid Marketplace Agreement

for Suppliers

Welcome to the Lucid Marketplace where Buyers and Suppliers can connect to more efficiently complete online Sample transactions.

THIS AGREEMENT GOVERNS YOUR USE OF THE LUCID SERVICES AND ANY TRANSACTIONS WITH BUYERS THAT YOU FIRST CONNECT WITH VIA THE LUCID SERVICES. YOU AND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT CONCLUDE THIS AGREEMENT WITH US WHEN YOU USE THE LUCID SERVICES AND WHEN YOU EXPRESSLY ACCEPT THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. YOU INCUR THE RIGHTS AND OBLIGATIONS OF A SUPPLIER WHEN WE GENERATE USER LOGIN CREDENTIALS FOR YOU. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS ON THE ORDER FORM.

This Agreement is between You and Lucid (each, a “Party,” collectively, the “Parties”) and constitutes the entire understanding related to the Lucid Services. Lucid reserves the right, at any time and at Our sole discretion, to update, revise, supplement, and otherwise modify this Agreement or the Lucid Services, and to impose new or additional rules, policies, terms, or conditions on Your use of the Lucid Services. Before We make material changes to this Agreement, Lucid will provide prior written notice, e.g. by electronic notice to Your Users via the Lucid Marketplace Interface or email. Any new features that augment or enhance the Lucid Services, including the release of new APIs, tools, and resources, shall be subject to this Agreement. Continued use of the Lucid Services after any such changes shall constitute Your consent to such changes; provided however, if the change has a material adverse impact on You and You do not agree to the change, You must notify Lucid via legal@luc.id within 30 days after receiving notice of the change. If You notify Lucid as required, then You will remain governed by the terms in effect immediately prior to the change until the end of the then current calendar year. If You continue to access and sell Sample in the Lucid Marketplace during the following calendar year, Your Use of the Lucid Services and Your relationship with Lucid will be renewed under the then-current terms and conditions for Suppliers.

  1. ROLES AND RESPONSIBILITIES.

1.1            Lucid’s Role. We provide Buyers and Suppliers with access to the Lucid Services. Other than certain aspects of Lucid Marketplace Services, as an operator of the Lucid Marketplace We do not buy, acquire, resell or otherwise provide Sample or other services that are ultimately provided by You. Buyers and Suppliers transact directly with each other in the Lucid Marketplace. Lucid does not accept any responsibility for the composition of Sample or for the legal and compliance obligations of Buyers or Suppliers related to Sample that is sold and procured by Suppliers and Buyers, respectively, when accessing and using the Lucid Marketplace. If Buyers or Suppliers fail to honor their respective contractual and legal obligations, Lucid may assert its own rights against the party in breach. We will also make good faith attempts to resolve any disputes between a Buyer and a Supplier, but Lucid does not accept responsibility or liability for Buyers’ or Suppliers’ obligations or liability to one another.

1.2            Buyers’ and Suppliers’ Obligations to Lucid. As a Supplier, You must comply with all Applicable Laws and terms of this Agreement. Without limiting the generality of the foregoing, Suppliers must ensure that Respondents have received all required privacy notices and provided consent to processing and sharing of their Personal Data if and as required by Applicable Laws. Buyers must also ensure that Respondents have received all required privacy notices and provided consent to processing and sharing of their Personal Data once a survey begins in the Lucid Marketplace if and as required by Applicable Laws.  All Buyers and Suppliers are responsible, at their expense, for its own connectivity to the Lucid Services

1.3            Buyers’ Obligations to Suppliers. Buyers must pay all fees to Lucid when due (so We can pay Suppliers) and honor all obligations committed to in the context of a Buyer Opportunity.

1.4            Supplier’s Obligations to Buyers. As a Supplier, You must perform the obligations You accepted with respect to a particular Buyer Opportunity, and any terms specified by the Buyer.

1.5            Code of Conduct. Lucid and Suppliers are independent entities, but the business practices and actions of its Buyers and Suppliers may significantly impact or reflect upon Lucid’s reputation and its brands. As a result, Lucid requires all Buyers and Suppliers and their Users and Respondents to adhere to Lucid’s Code of Conduct (“Code”) while conducting business under this Agreement or in the Lucid Marketplace – via Lucid APIs or otherwise either as Marketplace Activity or OTC Activity. You shall ensure that Your Users and Respondents understand and comply with the Code through education, training, and other applicable means. The Code is available at: https://luc.id/code-of-conduct/.

1.6            Personal Data and Compliance with Data Privacy Laws. Suppliers own relationships and primary privacy compliance obligations with respect to Respondents and to Your Sample and Supplier Services. Suppliers warrant and shall ensure that their Respondents receive accurate privacy notices and declare consent if and as may be required by Applicable Laws. Buyers warrant and shall ensure Respondents receive accurate privacy notices, they process all Respondent subject access requests (including objecting to or limiting the sale of data), and collect any required consents under Applicable Laws related to data Buyer collects outside the Lucid Marketplace. Lucid will process data of Respondents as described in Lucid’s Privacy Policy found at https://luc.id/privacy-policy/. Buyers shall not re-identify any Respondents or contact Respondents outside the scope of the Buyer Opportunity or Lucid Services. Lucid, Buyers and Suppliers shall respect the privacy of Respondents and comply with all Applicable Laws related to data privacy and data protection. Additional processing obligations related to data are found in the Code.

  1. LUCID SERVICES.

2.1            Availability of Lucid Services. We will: (i) allow You and Your Users access to the Lucid Services pursuant to this Agreement either via the Lucid Marketplace or Lucid APIs for as long as You are a Supplier in good standing on the Lucid Marketplace by complying with Your obligations under this Agreement, (ii) make technical support available to You, through Our end user support team, at no additional charge, and (iii) use commercially reasonable efforts to make the online Lucid Services available 24 hours a day, 7 days a week in the Public Cloud, except for: (a) downtime for Scheduled Maintenance or emergency maintenance (as defined in Section 2.2 below), and (b) any unavailability caused by circumstances beyond Our reasonable control, including, for example, and act of God, act of government, virus, pandemic, flood, fire, earthquake, hurricane, civil unrest, act of terror, strike or other labor problem, or Internet service provider failure or delay.

2.2            Scheduled Maintenance and Emergency Maintenance. Lucid will provide You with at least 7 days advance written notice (e.g., electronic notice to Your Users either via the Lucid Marketplace Interface or email) of any scheduled maintenance, including a maintenance window of time and the approximate length of the scheduled maintenance period (“Scheduled Maintenance”). If Lucid deems it necessary to perform emergency maintenance on the Lucid Marketplace (meaning any downtime that is not Scheduled Maintenance), Lucid will use commercially reasonable efforts to provide You with 24-hour notice (e.g., notice to Your Users either via the Lucid Marketplace Interface or email).

2.3            Security Measures. In order to protect the integrity and quality of Sample Sold in the Lucid Marketplace, Lucid may, without liability and at its sole discretion, suspend or terminate, with or without notice, Your access to the Lucid Marketplace by revoking Your Lucid API keys or restricting Your User login(s): (i) following or to prevent a possible or actual security breach or cyber-attack on Lucid or its Public Cloud, (ii) in order to protect Lucid’s network in the Public Cloud, (iii) if required by a governmental entity or law enforcement agency, (iv) if You or a User or Respondent is causing technical or other problems to the Public Cloud, (v) if Your Respondents are consistently producing poor-quality or unreliable Sample in violation of the Code, (vi) for failure to become an active Supplier in the Lucid Marketplace by following the requirements in Section 3.1, or (vii) as otherwise allowed under this Agreement or Applicable Law.

  1. BECOMING A SUPPLIER IN THE LUCID MARKETPLACE.

3.1            Access and Membership in the Lucid Marketplace. You will be granted access to the Lucid Marketplace as a Supplier after executing an Order Form, agreeing to pay the Supplier Commissions, and satisfying all operational and procedural requirements of Lucid as specified in the Code. As a Supplier, You can access and use the Lucid Marketplace via Lucid-generated User login credentials; failure to use the Lucid Marketplace within a reasonable amount of time may result in a suspension or termination of Your account. After accepting this Agreement and completing the requirements in this Section 3.1, You may become a member of the Lucid Marketplace by sending Your first Respondent to participate in a Buyer Opportunity.

3.2            Supplier Commissions Payable by You. When You sell Sample to a Buyer using the Lucid Services, for each transaction Completed by one of Your Respondents You will be charged either a fee or other commission as defined on the Supplier Portal (“Supplier Commissions”). The Supplier Commissions paid by You are Confidential Information (as between You and Lucid) and subject to the restrictions in Section 5.1 below.

3.3            Marketplace Activity. In the case of Marketplace and OTC Activity, the Lucid Marketplace is used by You to sell Sample to Buyers. Lucid is counterparty to these transactions, which means on a monthly basis, Lucid pays You for Sample Sold by You via the Lucid Marketplace, subject to the adjustments described in this Section 3. Buyers and Suppliers do not send or receive invoices from one another for Marketplace Activity. As a member of the Lucid Marketplace, You acknowledge and agree that Your Respondents consent to participate in additive surveys when Lucid acts as the Buyer while performing other Lucid Marketplace Services (e.g., surveys for advertising effectiveness), as described in more detail in the Code; for clarity, You will pay Supplier Commissions for any such Completed transactions as described in the Order Form.

3.4            Over-the-Counter Activity. You may also use the Lucid Marketplace to sell OTC Completes. Lucid is counterparty to OTC Activity between Suppliers and Buyers, and Supplier Commissions are charged by Lucid as described above in Section 3.3 for access to and any use of the Lucid Marketplace or as otherwise defined on the Supplier Portal. Lucid disclaims all liability related to Your OTC Activity.

3.5            Invoicing and Payment.  Suppliers are paid on the basis defined in the Supplier Portal for Sample Sold in the Lucid Marketplace, as adjusted subject to the reconciliation process in Section 3.6, and less the Supplier Commissions owed by You to Lucid. Payment terms, applicable to You and Lucid, are defined on the Supplier Portal. The Supplier is responsible for providing Lucid with electronic payment account information and notifying Lucid via email at accounting@luc.id when updated. Lucid may invoice a Supplier as a result of the reconciliation process (see Section 3.6), with payment terms described on the Supplier Portal. If You are a Buyer and a Supplier in the Lucid Marketplace, special payment terms may be described on the Supplier Portal. Unless stated otherwise, any applicable fees will not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added taxes (“VAT”), goods and services taxes (“GST”),  sales and use, or withholding taxes, assessable by any local, state, federal, provincial, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with any applicable invoices hereunder. If Lucid has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the Taxes shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. If a taxing authority determines that additional Taxes should have been collected on the transaction, You agree to reimburse Us for the Taxes assessed. For clarity, Lucid is solely responsible for taxes assessable against it based on its income, property and employees.

3.6            Reconciliation Process. During a Reconciliation Window, Buyers have the right to adjust the status of transactions for both Marketplace Activity and OTC Activity from Completed to terminated or from terminated to Completed; provided however, such reconciliations shall be processed in accordance with this Agreement and the Reconciliation Report at https://support.lucidhq.com/s/article/Reconciliation-Report. During the Reconciliation Window, if reductions taken for the previous month exceed the cost of Sample Sold by You in the invoiced month, Lucid will issue an invoice to You for the difference. The invoice will include the Supplier Commissions payable by You. YOU WILL NOT BE PAID THE COST OF SAMPLE SOLD FOR ANY TRANSACTIONS PROPERLY TERMINATED BY A BUYER DURING A RECONCILIATION WINDOW.

3.7            Payment Disputes. If You believe any payment or invoice from Us is incorrect, You must contact Lucid in writing within 30 days of payment or invoice date, respectively, setting forth the nature and amount of the requested correction directed to accounting@luc.id. Otherwise, all amounts paid or owed are final. Lucid reserves the right to recover any amounts overpaid to You.

  1.  ACCESS TO AND USE OF LUCID SERVICES.

4.1            Use of Lucid Services. Subject to Your compliance with this Agreement, You may access and use the Lucid Services solely for Your own business purposes during the Term of this Agreement. Lucid reserves the right to immediately terminate Your access to the Lucid Services if We become aware You are in breach of any obligations under this Section 4. By using the Lucid Services and selling Sample in the Lucid Marketplace, You represent neither You, Your Users, nor any of Your Respondents are owned or controlled by nor acting on behalf of, any person or entity (i) located or organized in Cuba, Iran, Sudan, North Korea, Syria, the Crimea region of Ukraine, or any other country or region that is subject to comprehensive U.S. economic sanctions, (ii) identified on the Specially Designated Nationals and Consolidated Sanctions List administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, or (iii) with whom U.S. persons are otherwise prohibited from transacting.

4.2            Your Responsibilities. You shall be solely responsible for (i) using commercially reasonable efforts to prevent unauthorized access to or use of the Lucid Services, and notifying Us of any unauthorized access or use, (ii) ensuring that You, Your Affiliates, Your Users, and Your Respondents are accessing and using the Lucid Services only in accordance with this Agreement, the Code, and Applicable Laws, or (iii) all activity occurring under Your User accounts and ensuring that such activity is done so in accordance with all Applicable Laws, including without limitation, those related to data privacy, international communications, COPPA and other age restrictions, the transmission of data, and data subject consent with Your Respondents.

4.3            Non-Circumvention. Neither You nor Your Users shall make any attempt to circumvent the intent or purpose of the Lucid Marketplace: (i) by coaching, leading, or instructing Your Respondents as to the responses required in order to be included in the Sample for a Buyer Opportunity, (ii) by manipulating the responses of Your Respondents to purposely bias or alter the quality of Your Sample, (iii) by avoiding the payment of, or otherwise reducing, all or any portion of the payments, fees and charges payable to Lucid (whether by simulation, side agreement, or understating the consideration due for Marketplace Completes and OTC Completes), or (iv) otherwise using the Lucid Services inconsistent with supporting market, opinion and social research. To ensure to the intent and purpose of the Lucid Marketplace is not circumvented: (i) You warrant You will provide Sample on the Lucid Marketplace for a cost of Sample Sold less than or equal to prices provided outside the Lucid Marketplace, (ii) Lucid shall not take any direct action to influence Supplier’s cost of Sample Sold to any Buyer or Supplier in the Lucid Marketplace, and (iii) Lucid shall not take any direct action to restrict Supplier from accessing any Buyer Opportunity in the Lucid Marketplace. Buyers are not prohibited from restricting any Suppliers access to Buyer Opportunities for any reason. For clarity, OTC Activity in compliance with this Agreement is not a violation of this section 4.3 regarding non-circumvention.

4.4            Prohibited Uses. Except in connection with the Supplier Services sold by You in the Lucid Marketplace (or via Lucid APIs), Your use of the Lucid Services shall not include service bureau use, reselling, outsourcing, renting, distributing, sublicensing, or otherwise commercially exploiting or making available to any third party the Lucid Services or Lucid Technology. You shall not and shall not permit any User, Affiliate, Respondent, or any other third party to: (i) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Lucid Services or Lucid Technology or any part thereof or otherwise attempt to discover any source code or modify the Lucid Services or Lucid Technology in any manner or form, (ii) “frame” or “mirror” the Lucid Marketplace or Lucid Technology on any other server or wireless or Internet-based device, (iii) access, penetrate, probe, or scan the Lucid Services or Lucid Technology for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes, or (iv) use the Lucid Services for the purposes of building a similar or competitive product or service. You shall not and shall not permit any User, Affiliate, Respondent, or any other third party to use the Lucid Services, Marketplace Data, Respondent Screening Data or Lucid Technology: (a) in violation of Applicable Laws, including without limitation, COPPA, CalOPPA, and the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, (b) to publish, post, upload, send, store or otherwise transmit material that is unlawful, harassing, libelous, defamatory, threatening or otherwise in violation of any third party rights of privacy or other intellectual property rights, © to publish, post, upload, or otherwise transmit material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs that are intended to interfere with or otherwise disrupt the integrity or performance of the Lucid Marketplace or Marketplace Data contained therein, or (d) in an attempt to gain unauthorized access to the Lucid Marketplace or its related systems or networks.

4.5             Quality Program. As a condition to using the Lucid Services, You shall (along with other Suppliers) participate in Lucid’s Supplier Quality program defined at https://luc.id/quality , unless You are deemed ineligible for participation or Your obligation to participate has been waived, in either instance as reasonably determined by Lucid.

  1. CONFIDENTIALITY AND PUBLICITY.

5.1            Confidentiality and Non-Disclosure. During the Term of this Agreement, each Party may be furnishing certain information (each a “Disclosing Party”) to the other Party (the “Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Your Confidential Information includes the Supplier Commissions payable by You. Our Confidential Information includes the Lucid Services and the Lucid Technology. The Confidential Information of the Parties includes the terms and conditions of this Agreement, all information in the Supplier Portal and all Order Forms, as well as business and marketing plans, technology, commercial, financial and technical information, product plans and designs, trades secrets, and business processes and unpublished information relating to the business or prospective business of either Party. As between You and Lucid, the Parties agree to hold Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. Confidential Information does not include any information that: (i) is, or later rightfully becomes, available to the public, (ii) was in the Recipient’s rightful possession prior to receipt of the information from the Disclosing Party, (iii) is later disclosed to the Recipient by a third party who has no obligation of confidentiality, (iv) is independently developed by the Recipient without the use or benefit of the Confidential Information, or (v) is made available by You in the Lucid Marketplace (except for the Supplier Commissions payable by You). This Agreement does not prohibit the disclosure of Confidential Information to the extent required by applicable law, regulation or court order. Each Party agrees to use the same degree of care it uses to protect the confidentiality of its own Confidential Information (at all times exercising at least a commercially reasonable degree of care) and not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by You or made available by You to the Lucid Marketplace. Either Party may disclose Confidential Information on a need to know basis to its Affiliates, Users and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section 5.1.

5.2            Publicity. You grant Us the right to use Your company name and logo as a reference for marketing or promotional purposes on Our website and in other public or private communications with Our existing or potential customers, subject to Your standard trademark usage guidelines as provided to Us. You may send Us an email at marketing@luc.id if You do not want Us using Your company name or logo except as to provide the Lucid Services.

  1. PROPRIETARY RIGHTS AND RESPONSIBILITIES.

6.1            Ownership of Lucid Technology. This Agreement contains a non-exclusive right to access and use the Lucid Services during the Term, not a transfer of title to the Lucid Technology. As between You and Lucid, all Intellectual Property Rights in and to the Lucid Marketplace Data, Lucid Marketplace and Lucid Technology belong exclusively to Lucid Holdings, LLC and its licensors. You are granted no licenses of any kind to any Intellectual Property Rights of Lucid. You shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Lucid Marketplace Interface, unless otherwise agreed by Lucid in writing. Lucid reserves the right to make changes and updates to the functionality or performance of the Lucid Services from time to time at its sole discretion. To the extent You or Your Users or Your Respondents provide any suggestions, comments or other feedback related to the Lucid Services or the Lucid Technology (“Feedback”), You grant Lucid Holdings, LLC a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, transferable license to use such Feedback or subject matter thereof in any way and without limitation.

6.2            Your Rights and Responsibilities. You shall have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of Your Sample and Supplier Services. You shall be responsible for ensuring that Your Sample has been processed by You in accordance with Applicable Laws and the Code. During the Term of this Agreement, Suppliers have the right to view, access, or download some portion of the Respondent Screening Data from the Lucid Marketplace related to a Buyer Opportunity for 30 days following each Respondent’s last interaction in the Lucid Marketplace specific to that Buyer Opportunity.

6.3            Lucid APIs. Your use of the Lucid Services may involve the use of one or more APIs between the Lucid Technology and Your third party systems and software products. You recognize Lucid holds all rights, title and interest over the Lucid APIs, as well as any Intellectual Property Rights. Intellectual Property Rights to any software developed solely by You to consume the Lucid APIs, if any, belong to You.

  1. WARRANTIES AND DISCLAIMERS.

7.1            Warranties. You represent and warrant that (i) You have validly entered into this Agreement and have the legal power to do so, (ii) You and Your Users and Respondents, in accessing and using the Lucid Services, selling Sample and Supplier Services, and processing Personal Data, do so only in strict compliance with Applicable Laws and the Code, and (iii) You have and shall continue to hold all necessary approvals, licenses, permissions and data subject consents with Respondents necessary in connection with the performance of Your obligations under this Agreement and as a controller of Personal Data under Applicable Laws. Not more than once a year and at Lucid’s own expense, Lucid reserves the right to audit Your compliance with the warranties in this Section 7.1, and You shall provide relevant documentation in order for Lucid to conclude such audit.

7.2            DISCLAIMER. THE LUCID SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, LUCID DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND SYSTEM INTEGRATION OR COMPATIBILITY. WITHOUT LIMITING THE FOREGOING, LUCID DOES NOT WARRANT OR REPRESENT THAT THE LUCID SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED, OR ERROR-FREE. THE LUCID SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LUCID IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL.

  1. INDEMNIFICATION.

8.1            Indemnification by You. You shall indemnify and hold Lucid, its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorneys’ fees and costs of defense) and defend Lucid against any actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from or arising out of a breach of Sections 4.2, 4.3, 4.4, 6, or 7.1 above or any harm caused by or to Respondents.

8.2            Indemnification by Lucid. Subject to Your lawful use of the Lucid Services, Lucid shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Lucid Technology directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party as of the Effective Date of this Agreement, except that Lucid will not be obligated to indemnify You to the extent that an infringement or misappropriation claim is based upon use of the Lucid Services in violation of this Agreement, the Code, or Applicable Laws.

8.3            Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 8, the indemnified Party shall: (i) promptly give written notice of the claim to the indemnifying Party, (ii) allow the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability), and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense, of such claim and any appeal arising therefrom. The indemnification obligations under this Section 8 are expressly conditioned upon the indemnified Party’s compliance with this Section 8.3 except that failure to notify the indemnifying Party of such claim shall not relieve that Party of its obligations under this Section 8 but such claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations in this Section 8 shall survive termination of this Agreement for one year.

  1. LIMITATION OF LIABILITY.

9.1           IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE LUCID SERVICES OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, DATA BREACH, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE LUCID SERVICES BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.

9.2             THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT LIMITED TO THE GREATER OF $1,000,000 OR SUPPLIER COMMISSIONS PAID BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE NOTICE OF THE CLAIM IS GIVEN. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THIS AGREEMENT OR APPLICABLE LAWS.

9.3            THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO (I) SUPPLIER COMMISSIONS DUE UNDER THIS AGREEMENT, (II) A BREACH OF SECTION 4, 6 or 7.1 OF THIS AGREEMENT, OR (III) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8.

  1. TERM AND TERMINATION.

10.1         Term of Agreement. Unless otherwise specified on the Order Form, this Agreement commences on the Effective Date and shall continue until terminated by either Party (the “Term”).

10.2         Termination of Agreement. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, (ii) immediately, by giving written notice to the other Party, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) upon 45 days written notice to the other Party for any reason or no reason. Lucid may terminate this Agreement immediately if You are in breach of Section 4 of this Agreement.

10.3         Suspension for Nonpayment. Any breach of Your payment obligations under Section 3 will be considered a material breach of this Agreement. Lucid, in its sole discretion, may suspend Your use of the Lucid Marketplace upon 10 days’ notice until all undisputed amounts have been fully paid to Lucid.

10.4         Effects of Termination. Upon termination of this Agreement, Your right to access or use the Lucid Services immediately ceases, and Lucid shall have no obligation to store, maintain, forward, or otherwise restore any data other than whatever data was previously downloaded by You. The termination of this Agreement for any reason shall not affect: (i) obligations of the Parties to account for and pay to one another amounts owed under this Agreement for activity that occurred in the Lucid Marketplace (whether before or after the notice of termination), or (ii) any other right, obligation or liability which either You or Lucid has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination.

  1. GENERAL PROVISIONS.

11.1         Notice. Except as otherwise specified in this Agreement, all notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be deemed to have been given to a Party when delivered personally to such Party or sent to such Party by reputable express courier service (charges prepaid) or mailed to such Party by certified or registered mail, return receipt requested and postage prepaid, to such Party’s address on the Order Form or any other address that such Party has identified as the address for notices by written notice hereunder to the other Party at least 30 days prior to such other Party’s notice.

11.2         Governing Law; Dispute Resolution. This Agreement and any dispute arising out of or in connection with the subject matter of this Agreement will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the State of New York, United States of America, without giving effect to conflicts of law principles thereof and excluding the U.N. Convention on the International Sale of Goods. The Parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided below, each Party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portion of any contract between the Parties and which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. Except as provided below, any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS for mediation before arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a Party providing JAMS a written request for mediation setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes, but the mediator shall not have the authority to award punitive or exemplary damages. The Parties agree that they will participate in good faith and share equally in its costs. The mediation shall take place in New York, New York. The dispute resolution procedures in this Agreement shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.

11.3         Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between You and Lucid.

11.4         Assignment. Either Party may assign its rights and obligations under this Agreement; provided, however, in the event You assign Your rights under this Agreement in connection with a merger, acquisition or sale of a majority of Your assets You will provide written notice to Lucid (directed to legal@luc.id); provided further, however, You may not assign this Agreement and the rights hereunder to a competitor of Lucid without Our prior written approval. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

11.5         Expenses. Except as otherwise provided herein, all expenses incurred by each Party in performing its obligations hereunder shall be borne by the Party incurring the expense.

11.6         Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.7         Headings. The headings in this Agreement are for the purpose of reference only and shall not limit or otherwise affect any of the meanings or interpretations of this Agreement.

11.8         Questions. Any questions regarding this Agreement should be directed to legal@luc.id.

11.9    Electronic Signature Consent.  Your execution of this Agreement (by electronic or hard signature) or Your use of the Lucid Services constitutes Your acceptance of all of the terms and conditions set forth in this Agreement. You and Lucid agree and acknowledge that electronic signatures shall have the same force and effect as original or hand-written signatures with respect to this Agreement (or any statement of work or  Order Form referencing  this Agreement) and all electronic records or transactions entered into between You and Lucid with respect to the Lucid Services. You affirm you intent to conduct transactions using electronic signatures and records. You may revoke approval of this electronic signature process at any time with prior written notice to Lucid; however this may result in Lucid’s suspension or termination of all transactions and/or access or use of the Lucid Services absent Your acknowledgment of agreement or consent by other valid legal means.

11.10  Attorneys’ Fees. In the event any action is brought to enforce against You any provision of this Agreement or to declare a breach of this Agreement, Lucid shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, court costs and cost of collection, incurred by Lucid.

11.11  This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

  1. DEFINITIONS.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, which means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means these terms and conditions related to Your access to and use of the Lucid Services, as well as the Code, Supplier Portal, and Reconciliation Report.

“Applicable Laws” means all applicable laws, statutes, enactment, regulations (including those related to data privacy, information security, international communications, and the transmission of data, including the General Data Protection Regulation (GDPR) 2016/679, and each EU member state’s implementation thereof such as the UK Data Protection Act of 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and it successor, California Consumer Privacy Act (CCPA) any other ordinances, rules, codes and orders of governmental authorities having jurisdiction over You or Lucid, as well as relevant industry standards such as ESOMAR and the Insights Association.

“Buyer” means the business entity acquiring Sample for a Buyer Opportunity in the Lucid Marketplace or indirectly through a third party using the Lucid Marketplace on such entity’s behalf. In some circumstances, the Supplier may also be a Buyer.

“Buyer Opportunity(ies)” means an engagement, campaign, or other project defined by a Buyer, such as Sample for a survey, a recruiting effort, or some other cost-per-action effort, that has been defined by a Buyer and is sourced by one or more specific Supplier(s) or the Lucid Marketplace.

“Buyer Opportunity Data” means any data entered or provided by Respondents once they exit or are otherwise redirected from the Lucid Marketplace to another third party service to conclude the Buyer Opportunity, which is never stored on the Lucid Marketplace Interface or in the Public Cloud.

“Complete(s)(d)” means a transaction executed and concluded by a Respondent for a Buyer Opportunity as evidenced through the Lucid Marketplace (specifically, the redirect link).

“Marketplace Activity” or “Marketplace Completes” means any Buyer Opportunity occurring on the Lucid Marketplace or via a Lucid API in which Lucid is counterparty.

“Marketplace Data” means any data, metadata or other information that is learned, gathered, published, indexed, uploaded, created, bought or stored on the Lucid Marketplace, including without limitation, the Respondent Screening Data.

“Lucid Marketplace” means a marketplace consisting of Suppliers and Buyers who have agreed to be participating members by either accepting this Agreement, if a Supplier, or the applicable Buyer business terms.

“Lucid Marketplace Interface” means the Public Cloud platform and application of Lucid Holdings, LLC based on Lucid Technology that is used to facilitate Completed transactions between Buyers and Suppliers related to Buyer Opportunities.

“Intellectual Property Rights” means any copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), and patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights (whether registered or not) as may exist now and hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, or jurisdiction.

“Lucid API(s)” means an application programming interface developed by Lucid.

“Lucid Services” means online access to the Lucid Marketplace, and Lucid APIs, as well as any technical support and other Lucid Marketplace Services provided by Lucid during the Term of this Agreement.
 Lucid Services does not include OTC Activity, Sample, or any Supplier Services.

“Lucid Marketplace Services” means the managed services related to survey design, survey programming, translation, data analysis, data presentation and reporting, obtaining registrants and participants for surveys and survey panels, assistance with advertising effectiveness campaigns, other advertising research services, and/or similar services outside the scope of this Agreement.

“Lucid Technology” means Lucid’s proprietary technology (including software, hardware, APIs, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) underlying the Lucid Marketplace.

“Order Form(s)” means an online or offline document specifying Your consent to becoming a Supplier on the Lucid Marketplace, including without limitation, the Supplier Commission payable by You, applicable taxes, and payment methods, that is executed by You and Lucid, including any addenda and supplements thereto. The Supplier Portal is an Order Form. The Supplier Portal supersedes all other Order Forms.

“OTC Activity,” “Over the Counter Activity,” or “OTC Completes” means any Buyer Opportunity on the Lucid Marketplace Interface utilizing a forward auction Sample Cost determined by the Supplier, as opposed to reverse auction pricing for Buyer Opportunities determined by Buyers.

“Personal Data” carries the same definition in the Applicable Laws and includes the term Personal Information as defined by the CCPA.

“Public Cloud” means the cloud-based Lucid Services provided by Lucid (and its third party sub-processors) on servers located in the United States.

“Reconciliation Window” means a period equal to the remaining days in the calendar month when the Respondent interview or transaction is concluded plus the following calendar month.

“Respondent(s)” means a natural individual who has consented to participate in one or more Buyer Opportunities on Your behalf, either by answering specific prequalifying questions in the Lucid Marketplace or who, based on demographic data automatically transmitted to the Lucid Marketplace by You, is automatically prequalified and thus directly routed to participate in the Buyer Opportunity.

“Respondent Screening Data” means all data supplied, indexed, or otherwise transmitted by You or provided by Your Respondents to the Lucid Marketplace (or through a Link URL with Your Respondent using a Lucid API), for answering questions and qualifying each Respondent to Complete a Buyer Opportunity, which information is then stored by Lucid in the Public Cloud.

“Sample” means access to Respondents who are made available by You in the Lucid Marketplace to answer questions and participate in Buyer Opportunities.

“Sample Sold” means the Sample You sell to Buyers for each Buyer Opportunity, the cost for which is exclusive of any Supplier Commissions.

“Supplier” means any company with a prequalified user base of individuals who have consented to be Respondents in the Lucid Marketplace.

“Supplier Portal” means the portion of the Lucid Marketplace demarcated as Supplier Portal indicating the Supplier Commissions and other applicable payment terms for Supplier Services.

“Supplier Services” means Sample You sell and any other services Supplier agrees to make available in response to a Buyer Opportunity.

“Users” mean Your employees, representatives, consultants, contractors or agents who have been granted access to use the Lucid Marketplace on Your behalf either via user identifications and passwords or via an API integration.

“We,” “Us,” “Our,” or “Lucid” means Lucid Holdings, LLC, a Delaware limited liability corporation.

“You” or “Your” means the Supplier or an Affiliate that has signed an Order Form. A Supplier may also be a Buyer, which if desired, requires Your agreement to separate Buyer terms and conditions before receiving preferred pricing.

Last Modified: July 1, 2020.

Copyright 2020, Lucid Holdings, LLC.

All Rights Reserved.