This agreement is between Surveypal Ltd. (“Surveypal”) and the customer. This agreement is required for the customer to use the Surveypal software or any related services and materials (the “Surveypal software”). PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SURVEYPAL. YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. BY USING THE SERVICES, YOU EXPRESSLY CONSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT (A) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND BE A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (B) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER TO THE AGREEMENT IN WHICH CASE THE TERMS “CUSTOMER,” “YOU,” “YOUR” OR A RELATED CAPITALIZED TERM HEREIN SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
The customer pays an agreed-upon fee to Surveypal in exchange for a right to use the Surveypal software (the “license”). Each customer’s fees may vary, depending upon the customer’s number of users, services purchased, length of the license, unlimited or limited use and other factors.All fees, payment terms and other license details are contained in the approved Surveypal Order between the customer and Surveypal.
The Surveypal Order is either: (1) the online order that a customer has submitted to Surveypal as approved by Surveypal; or (2) any other written order (electronic or in paper form) submitted by a customer to Surveypal as approved by Surveypal. Please obtain an approved Order from Surveypal before accessing the Surveypal software.
The customer’s fees payable to Surveypal will remain unchanged for certain time periods if so stated in the Surveypal Order. However, Surveypal reserves the right to revise its fees at any time without prior notice to any customer. The then-current fees will apply to any renewals or customer requests for changes to the Surveypal Order.
In exchange for the fees the customer pays, the customer receives a license from Surveypal to use the Surveypal software and those services which each customer chooses to purchase. The license is subject to the terms and conditions in this agreement and to timely payment of all the fees listed in the Surveypal Order.
The customer may continue to use the Surveypal software and services so long as the fees remain paid and the license is not suspended or terminated for a breach of this agreement, but a customer does not have any right to use the software or services after a license has been suspended or terminated, for non-payment or any other reason, or after a license has expired without payment for a license renewal at then-current Surveypal rates. The license cannot be transferred by the customer (except by a permitted assignment of this entire agreement).
The customer does not receive the ability or right to download the Surveypal software onto any user’s computer equipment, but only a license to use the Surveypal software on the Surveypal servers and/or in combination with software on a user’s computer.
The customer’s license to use the Surveypal software enables the customer to design survey forms and to send to prospective respondents e-mail invitations with links to the customer’s online surveys. The Surveypal software is a tool, to be used by the customer, for the customer to create its own personalized surveys.
Surveypal will supply the customer with user-specific identification to enable user access to the Surveypal software. User identifications will be managed jointly by Surveypal and the customer, depending upon the customer’s need to balance efficient access with the access restrictions the customer wants. The customer is required to update Surveypal regarding the customer’s current users for identification purposes and to maintain the security of its users’ identification information.
Individual users are not permitted to share their identifications, because the license under this agreement – and the corresponding license fees – are based upon a specific number of users of the Surveypal software under the customer’s license. Sharing of identifications is an impermissible way for a customer to circumvent paying appropriate fees to Surveypal. The customer is responsible to ensure that the customer’s personnel comply with these requirements.
Surveypal will provide (via the Surveypal website or by other means) a brief tutorial demonstration for users. Depending upon the services purchased by the customer, users may also have access to other types of assistance, training and information from Surveypal and others.
After the customer’s acceptance of this agreement and payment of the fees, the users identified by the customer will have access to the Surveypal software and those additional services which were purchased by the customer. All such items are intended by Surveypal and the customer to create a “toolbox” for users to create surveys, to refine past surveys and to analyze survey results in the ways they determine will best meet the customer’s needs.
Surveypal will have limited access to customers’ data for functionality purposes, and may use aggregate data, de-identified data and statistics to monitor or to improve the Surveypal software or to provide enhanced services to customers, but only to the extent that such data use is strictly consistent with Surveypal’s confidentiality, privacy and security obligations, certification and policies.
Surveypal offers special services to assist customers with enhanced privacy needs, but the customer understands that surveys may be distributed to many people by users, and Surveypal is unable to monitor or to control the actions of survey recipients who may distribute information to third parties. The customer must determine what steps it will take to guard against unwanted distribution of the customer’s surveys, results or any other information.
Surveypal provides region-specific customer support and technical support services, which may vary depending upon the services purchased by the customer. Surveypal will use all commercially reasonable efforts to promptly address customer questions and to promptly repair errors and malfunctions in the Surveypal software.
Temporary interruptions to some or all customers’ access to the Surveypal software may be required for repair work, and also for technical modifications, updating, installations and maintenance or for the security of communications, as well as under circumstances required by law, government regulation or industry guidelines, statements or recommendations. Surveypal will provide customers with reasonable advance notice of interruptions, if possible, and will inform customers of the status of any interruptions. Surveypal will use all commercially reasonable efforts to minimize or to eliminate interruptions, but no refunds of fees or other compensation will be provided for temporary interruptions, regardless of the reasons for any interruptions.
The Surveypal software may change from time to time as Surveypal’s software evolves, but Surveypal does not have an obligation to modify, expand or retain any particular Surveypal software feature or service. Surveypal may also change the terms and conditions of the customer’s license and this agreement at any time.
However, in the event of substantial reductions to the Surveypal software or services, or changes OF ANY KIND to this agreement or to the Surveypal Order, Surveypal will notify the affected customers directly via e-mail at least 30 days in advance of such changes, with specific information about the date that implementation of the changes will occur.
If the changes are unacceptable to the customer for any reason, the customer may then elect to terminate this agreement by providing notice to Surveypal via e-mail and by ceasing to use the Surveypal software and services before the change implementation date. See the “Notices” section in this agreement for how notices are sent.
Surveypal will then discontinue the customer’s access to the Surveypal software and services. The customer agrees to continue to pay for full access to the software and services even after such notice until all actual use by any users identified with the customer ceases. Surveypal or the customer will promptly refund/pay to the other party the proportionate share of fees due in accordance with the actual end-of-use date and the prices in the Surveypal Order in force at the end of use.
If any user identified with the customer continues to use the Surveypal software and services after implementation of the changes, the customer will be conclusively deemed to have accepted the changes.
The Surveypal software is designed to operate on computer systems that meet certain requirements with user interfaces (web browsers) that are compatible with the Surveypal software. The customer must provide at its own expense all the hardware, connections (including internet and/or intranet connections) and other software required for the proper operation of the Surveypal software on the customer’s system, along with any security functions desired by the customer (including system security and information security). As the Surveypal software, computers, the internet and web browsers evolve over time, the customer may need to upgrade its systems in order to continue to operate the Surveypal software in the future. These items are NOT included in what Surveypal provides, unless specifically agreed in advance and listed as paid for separately by the customer in the Surveypal Order.
The customer is solely responsible for the maintenance and support of all hardware, connections and software, except for the technical support of the Surveypal software. The customer will not receive a refund of fees paid to Surveypal for any lack of proper operation of the Surveypal software resulting from any malfunction in the customer’s hardware, connections or other software or resulting from interruptions in the customer’s internet and/or intranet service.
The customer is responsible for making back-up copies of its own surveys and all data, including the surveys and data also contained on Surveypal’s system. Surveypal maintains data back-up on a periodic basis via external cloud services, but Surveypal is not in the routine business of customer data storage. Therefore, the customer should not rely solely upon Surveypal for data back-up, and the customer must keep at least one copy of all its surveys and data somewhere other than on the Surveypal system. If a customer requests Surveypal’s assistance to retrieve lost customer data, Surveypal will charge then-current rates for data retrieval and restoration work, whether or not the customer’s data can be successfully restored.
Surveypal may delete all data relating to a customer’s account at any time beginning sixty days after termination of this agreement, unless Surveypal is expressly informed by the customer that data retention is required for a valid reason and a specific time period under applicable law, and the customer pays the then-current Surveypal fees for such data retention.
The customer is solely responsible for its surveys, and a customer may be held legally liable for its survey contents. Even when the Surveypal software and/or other services provide to the customer sample surveys or suggestions for any survey or for any particular survey question, or other assistance of any type to create a survey or to handle survey responses or data,it is the customer’s sole responsibility to determine whether each item is appropriate for use under the customer’s conditions, and to interpret any survey responses in light of the customer’s conditions. The customer agrees that it knows its own business better than Surveypal personnel ever can.
ALL SURVEYS ARE THEREFORE AGREED TO BE CUSTOMER CREATED SURVEYS UNDER ALL CIRCUMSTANCES. THE CUSTOMER, AND NOT SURVEYPAL, IS SOLELY RESPONSIBLE FOR THE CONTENTS, DISTRIBUTION, ACCURACY, DATA AND ALL ANALYSIS AND INTERPRETATION OF THE RESULTS OF ANY SURVEY.
Customers may not represent to anyone (directly, indirectly or by implication) that Surveypal is responsible for anything for which the customer is responsible. A customer does not own the Surveypal software or any aspect of the Surveypal software or related materials. No one may copy, edit, modify, reverse engineer or create derivative works of the Surveypal software or any related materials.
Customers may not download, or attempt to download, any portion of the Surveypal software except downloads that are specifically authorized by Surveypal. Even if the Surveypal software is downloaded, changed or anything is added to the Surveypal software, by or for a customer, with or without Surveypal’s knowledge, Surveypal still owns the software as modified.
Surveypal is the sole owner and/or authorized licensor of all intellectual property rights, including copyrights, patents, trademarks and trade secrets related to the Surveypal software and to any modifications, updates and future new versions of the Surveypal software.
Customers can purchase ONLY a temporary license to use the software as provided by this agreement. No statements or actions by anyone may be construed as a sale, perpetual license, release or any other transfer or waiver of Surveypal’s rights in the Surveypal software. Customers may not re-sell licenses to use the Surveypal software.
A customer does not exclusively own any of the surveys’ contents, even if a customer creates that content, and a customer will not receive compensation for any content. For example, if a customer creates a clever way to ask a particular question in a survey, that does not prevent others from using that same question in their surveys. Surveypal is unable to monitor the wording of all survey questions by all users to know whether others may use similar or even identical wording in their survey questions. However, if a customer’s survey form includes any items that a customer legally owns, such as a company logo, trademark or slogan, the customer will continue to own such items. Finally, a customer does own their survey data and user data, and all information attached to it.
In the event of non-compliance with the restrictions on user actions in this agreement by any user identified with a customer, Surveypal may suspend access to the Surveypal software and all services by all of the customer’s users, after notice. Surveypal and the customer will then determine the actions to be performed by the customer to cure the violation and to ensure future compliance, after which access may be reinstated.
In the event of continuing non-compliance, Surveypal may then terminate the customer’s license without further notice and without any refund of the fees paid, to the fullest extent permitted by applicable law, without any limitation of Surveypal’s other legal rights.
The Surveypal software may be used for any purposes determined by the customer, but Surveypal maintains a strict policy of social responsibility. The Surveypal software may not be used for PROHIBITED USE such as pornography, obscenity, abuse, threats, underage exploitation, racist or anti-ethnic content, defamation, harassment, invasion of privacy, corporate espionage, hacking, distribution of viruses or other malicious software, piracy, spam, impersonation, misrepresentation of a survey’s purpose or the surveyor, infringement of patents, copyrights, trademarks and trade secrets or in connection with any other actions that are illegal in: (a) any location from/to which a survey is sent; (b) any location in which a survey is created; or (c) any location in which a license to use the Surveypal software is granted or accepted. The Surveypal software may not be used indirectly to promote, condone or assist any such prohibited use even if a survey itself does not contain a direct violation.
Neither the customer nor any user identified with the customer may use hidden files, private passwords, restricted access or any other means that prevent Surveypal personnel from determining if a user is engaged in prohibited use. Use of any such methods will be conclusively deemed to indicate that the user is engaged in prohibited use even without any additional evidence of prohibited use (customers can use other Surveypal services to create legitimately private or password-protected surveys and to properly restrict access to surveys or data).
Surveypal maintains a zero tolerance policy for prohibited use. The customer is not entitled to any opportunity to cure a violation. Any survey violating this policy will be removed and the offending customer’s license to use the Surveypal software will be terminated without any refund of the fees paid, to the fullest extent permitted by applicable law, without any limitation of Surveypal’s other legal rights.
Surveypal is nevertheless unable to monitor the contents of surveys or the actions of customers. Surveypal does not routinely examine surveys before or after they are distributed and Surveypal cannot provide information to customers about legal requirements or restrictions in any location. Surveypal is therefore not responsible to any other party for a customer’s violation of this policy.
If a customer’s rights to use the Surveypal software or services are suspended or terminated for any reason, the then-current Surveypal charges for re-connection of the software and services must be paid by the customer before restoration of access.
Surveypal will provide customers advance notice of the termination or suspension of a customer’s rights to use the Surveypal software or service as follows:
1. Suspension of access to the Surveypal software or to any services for non-payment: 14 days
2. Violation of this agreement’s terms (for example, unauthorized sharing of user access identifications by a customer’s personnel or other violations which the customer may cure): 7 days
3. Violation of this agreement for serious matters (for example, prohibited use) may require only such notice, if any, as is appropriate under the circumstances determined in the sole discretion of Surveypal or as permitted/required by applicable law.
Notices can be provided by Surveypal and the customer to each other by sending an e-mail to the other party’s e-mail address in the Surveypal Order (or to such other e-mail address specified in the Surveypal Order as the proper address for formal notices relating to this agreement).
Neither Surveypal nor the customer is required to send multiple notices, and notice is conclusively deemed to have been provided if actual receipt of any e-mail fails through no fault of the sender, provided that the e-mail sender can demonstrate commercially reasonable efforts to provide notice.
The customer and Surveypal agree that, in order for Surveypal to be able to make the Surveypal software and services available to the customer at the price(s) the customer has agreed to pay, both parties have consented to certain exclusions and limitations to their potential future liabilities to each other.
Without these exclusions and limitations, one or both of the parties to this agreement would not do business with the other at the price(s) agreed upon, so these limitations are agreed by both parties to be mutual and essential consideration for this agreement and the price(s) in the Surveypal Order.
SURVEYPAL AND THE CUSTOMER EXPRESSLY AGREE THAT THE SURVEYPAL SOFTWARE AND SERVICES ARE PROVIDED “AS IS” EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT. SURVEYPAL MAKES NO REPRESENTATIONS WHATSOEVER REGARDING THE ACCURACY, COMPLETENESS OR QUALITY OF DATA OR INFORMATION OBTAINED BY THE CUSTOMER FROM ANY SURVEY, RESPONDENT OR USER OF THE SURVEYPAL SOFTWARE OR SERVICES. THE CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING ALL DATA AND INFORMATION OBTAINED IN ANY WAY IN CONNECTION WITH THE SURVEYPAL SOFTWARE OR SERVICES. SURVEYPAL PROVIDES NO GUARANTEES WITH RESPECT TO SOFTWARE, CONNECTION, SPEED, RELIABILITY, CONSISTENCY OR SECURITY. ALL SUCH ISSUES ARE FREQUENTLY INTERNET NETWORK DEPENDENT AND ARE THEREFORE BEYOND SURVEYPAL’S CONTROL. SURVEYPAL IS NOT RESPONSIBLE FOR ANY PERSON OR COMPANY LINKED TO/ FROM SURVEYPAL’S WEBSITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SURVEYPAL, ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, AGENTS, SERVANTS, OFFICERS AND EMPLOYEES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH DATA, INFORMATION AND THE SURVEYPAL SOFTWARE AND/OR SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PARTY NOR ITS AFFILIATES, NOR THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, AGENTS, SERVANTS, OFFICERS AND EMPLOYEES WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE OR DATA OR COSTS OF COVER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARISE OUT OF A BREACH OF THIS AGREEMENT.
IN THE EVENT THAT, NOTWITHSTANDING THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY, EITHER PARTY OR ITS AFFILIATES, OR THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, AGENTS, SERVANTS, OFFICERS AND EMPLOYEES, ARE LIABLE FOR ANY AMOUNT UNDER ANY THEORY OF RECOVERY FOR ANY REASON RELATING IN ANY MANNER TO THIS AGREEMENT, THE TOTAL LIABILITY WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT OF ACTUAL DIRECT DAMAGES; OR (B) THE TOTAL AMOUNT PAID BY THE CUSTOMER TO SURVEYPAL UNDER THE SURVEYPAL ORDER IN FORCE AT THE TIME OF THE REASON FOR WHICH ANY LIABILITY FIRST AROSE. THIS LIMITATION OF LIABILITY WILL NOT APPLY IN CASE OF A SPECIFIC DETERMINATION UNDER APPLICABLE LAW OF A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
SURVEYPAL AND THE CUSTOMER HEREBY SPECIFICALLY AGREE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY EVEN IF THEY WOULD CAUSE ANY CLAIMANT’S REMEDIES TO FAIL OF THEIR ESSENTIAL PURPOSE.
NOTWITHSTANDING ANY OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, SURVEYPAL AND THE CUSTOMER WILL EACH FULLY INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, AGENTS, SERVANTS, OFFICERS AND EMPLOYEES FOR ALL ACTUAL LOSSES AND LIABILITIES IN ANY AMOUNT INCLUDING WITHOUT LIMITATION ALL EXPENSES AND ATTORNEY’S FEES INCURRED IN DEFENDING AGAINST AND/OR SETTLING ANY CLAIMS OF ANY TYPE ASSERTED AGAINST EITHER PARTY BY A THIRD PARTY WHICH ARE THE CONSEQUENCES OF, OR ATTRIBUTABLE TO, ANY BREACH BY A PARTY OF ITS OBLIGATIONS IN THIS AGREEMENT, WHETHER OR NOT SUCH CLAIMS ARE FORMALLY FILED IN ANY COURT, GOVERNMENT AGENCY OR ANY OTHER DISPUTE RESOLUTION BODY.
This agreement and the license provided by this agreement may be assigned by either party to an affiliate of that party, provided that the assignment includes an assumption of all obligations and rights or, in the event of a partial assignment, that another affiliate of the same party agrees to retain the non-assigned obligations and rights.
Assignment of any type is not permitted by or to a party who repudiates or contests any obligation or right under the Surveypal license, this agreement or the Surveypal Order. An assignment may not result in circumstances that are contrary to the intent or purpose of any provision of this agreement or the Surveypal Order (for example, an increase in the total number of authorized users under the customer’s license) without the other party’s written consent.
An “affiliate” means any company or companies that controls, is controlled by, or is under common control with the party (“control” meaning the direct and/or indirect ownership of at least 50% of the voting share capital of any company or other legal power to designate a majority of the company’s principal management body).
Unless specifically agreed otherwise in the Surveypal Order, Surveypal has the right to use the customer’s name and logo as a reference in Surveypal’s communications and advertising. The customer will provide to Surveypal any logo requirements. Unless agreed otherwise, Surveypal may also add identifying information to all customer surveys (such as “powered by www.surveypal.com”) or a similar message.
Surveypal and the customer agree that the customer, and not Surveypal, is solely responsible for determining which laws and other regulations may apply to the customer’s use of the Surveypal software and services, and for determining the customer’s obligations under such laws and regulations.
If the performance of any obligation under this agreement by either party is prevented or affected by any event beyond the reasonable control of such party (force majeure the affected party must give notice to the other party of such circumstances as promptly as possible under the circumstances. In such event, the affected party’s obligations under this agreement will be suspended temporarily during the period of suchforce majeure to the fullest extent that is commercially reasonable. Surveypal is not obligated to extend any license time period even ifforce majeure prevents a customer from using the Surveypal software or services
Surveypal and the customer agree to resolve all disputes of any type through good faith negotiation. In the event that negotiations fail to resolve any dispute, such disputes will be resolved in the District Court of Tampere, Finland, unless another forum is strictly required by applicable law. No consent to any other jurisdiction or venue by either party may be implied as a result of any statement or action. This agreement and all actions taken in connection with this agreement or in connection with the Surveypal software and services will be governed by the law of Finland, without giving effect to any principles or conflicts of law, regardless of the venue.
This agreement (combined with any Surveypal Order for fees, payments and other terms) comprise the entire agreement between Surveypal and the customer. Neither party has relied upon, nor will it have any remedy based upon, any other agreement, warranty, statement, representation or understanding, written or oral, all of which are deemed cancelled by the customer’s acceptance of this agreement. If any term of this agreement is found to be void or unenforceable, all other terms will remain in full force and effect, and will be construed to fulfill the agreement’s intended purpose.
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