SurveyMonkey har flyttet sit internationale driftscenter fra Luxembourg til Irland. Det betyder, at hvis du har indgået aftale med SurveyMonkey Europe Sarl, og du fornyer denne kontrakt d. 1. januar 2015 eller derefter, overgår din kontrakt til SurveyMonkey Europe (vores irske selskab) efter en sådan fornyelsesdato. Ændringen af kontraktenheden betyder også, at SurveyMonkey Europe bliver den nye dataansvarlige for dine personlige data, men den måde, hvorpå vi håndterer og behandler dine data, vil ikke ændre sig på anden måde. Vi vil betragte det som dit samtykke til disse ændringer, hvis du fornyer din kontrakt og fortsætter med at bruge vores tjenester.
Ikrafttrædelsesdato: 3 Februar 2016
This Enterprise Agreement (the “Agreement”) is between SurveyMonkey and the Customer or End User, as applicable. This Agreement governs the subscription to and use of SurveyMonkey Enterprise and SurveyMonkey Advanced services (the “Services” or “Enterprise”).
You are the “Customer” under this Agreement if you are ordering the Services. As the Customer, you agree to this Agreement by clicking or tapping on a button indicating your acceptance of this Agreement, by executing a document that references this Agreement, or by using the Services. If you are an organization, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
1.1. Enterprise Services. As part of the Customer’s Enterprise subscription, SurveyMonkey will provide the Customer with access to and use of the Services.
1.2. Security. In the course of using the Services, the Customer may submit content to SurveyMonkey (including personal data and the personal data of others) or third parties may submit content to the Customer through the Services (“Customer Data”). SurveyMonkey will store and process Customer Data in a manner consistent with industry security standards. SurveyMonkey has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data.
1.3. Changes to Services. SurveyMonkey continually changes and improves the Services. The Customer’s use of any new features and functionality added to the Services may be subject to additional or different terms relating to such new features and functionality. SurveyMonkey may alter or remove functionality from the Services at any time without prior notice. However, SurveyMonkey will endeavor to provide the Customer with prior notice if we make a change to the Services resulting in a material decrease in functionality.
1.4. Suspension of Services. SurveyMonkey may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance). If SurveyMonkey limits or suspends the Services, we will endeavor to give the Customer reasonable advance notice so that the Customer can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for SurveyMonkey to give advance notice. SurveyMonkey will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.
1.5. Third Party Services. If the Customer uses any third party service with the Services (including services which use any application programming interface (API) provided by SurveyMonkey), the Customer acknowledges that the service may access or use the Customer Data. SurveyMonkey will not be responsible for any act or omission of the third party, including such third party’s use of the Customer Data. SurveyMonkey does not warrant or support any such third party service, and the Customer should contact that third party for any issues arising from the Customer’s use of the third party service.
1.6. Customer Success. The Customer may be assigned a customer success manager (“CSM”) by SurveyMonkey. The CSM may review the Customer’s use of the Services and the Customer Data for the purpose of assisting the Customer to more effectively use the Services, including by providing reporting and usage insight.
2. Designation of Roles
2.1. Group. Each account that belongs to the Customer’s Enterprise subscription is referred to as an “Enterprise Account” (or “End User account” or “seat”) and they collectively form the “Group”. A Group may represent a team, group or other subdivision within the Customer’s organization, or the whole organization. Each Enterprise subscription represents one Group, and the Customer may maintain multiple Groups by purchasing multiple Enterprise subscriptions. If the Customer maintains multiple Groups, the Customer may request to transfer an End User account from one Customer Group to another.
2.2. Primary Admin User. In order to use the Services, the Customer must designate a single “Primary Admin User” for each Group (also known as a “Primary Admin”). The Group’s Primary Admin User will be provided with an Enterprise Account with additional Group administration and billing management features. The Primary Admin User is also considered to be an Admin User and an End User.
2.3. Admin Users. Admin Users will have access to an Enterprise Account with additional Group administration features (“Admin Console”). The Customer may designate End Users to be “Admin Users” through the Admin Console of an Admin User’s account. An Admin User is also considered to be an End User.
2.4. End Users. An Admin User may, through the Admin Console, invite a person to join the Group as an End User. Upon acceptance of an invitation, the person will receive access to an Enterprise Account and become an End User of the Group.
3. End User Accounts
3.1. Joining a Group. When invited to join the Group, an End User may choose to join either by creating a new Enterprise Account, or by converting their existing personal account into an Enterprise Account. If an End User converts their personal account to an Enterprise Account, ownership of the account and user data in that account will transfer to the Customer and the account will be subject to the control of the Group’s Admin Users. This means that Admin Users will be able to monitor the account, access the account, handle any data contained within it, change account settings, assign the account to another End User, and close the account. Unless otherwise agreed, an End User who converts their personal account into an Enterprise Account will not be entitled to a refund for any unused time remaining in their personal account’s billing cycle at the time of conversion. By joining a Group, an End User consents to the foregoing.
3.2. Leaving a Group. An End User will be able to disassociate their Enterprise Account from the Group and convert it to a personal account if, in certain circumstances, the Agreement terminates. Upon the conversion of an Enterprise Account into a personal account, the Customer will lose control of the account and control will reside with the End User to whom the account is attributed at the time the account leaves the Group. The personal account will remain subject to the TOU, but this Agreement will terminate with respect to that account.
3.3. Closing an Enterprise Account. If an Admin User closes an Enterprise Account, that account will be removed from the Group and the account and its contents will be deleted.
3.4. Customer Policies. End Users must use the Services in compliance with any employment obligations and any other legal obligations they owe to the Customer.
4. Admin User Obligations
4.1. Admin Users. Admin Users are responsible for managing access to End User accounts, including other Admin User accounts, via their Admin Console and for complying with this Agreement and the TOU. Admin Users must maintain the confidentiality of Admin User account passwords. Admin Users may add or remove other Admin Users to or from the Group. Admin Users may also close Enterprise Accounts, disassociate Enterprise Accounts from the Group, and administer any Enterprise Account. However, only the Primary Admin User may access, alter, or close the Primary Admin User account. The types of administrative actions that certain Admin Users may perform on Enterprise Accounts may be able to be restricted by other Admin Users or the Primary Admin User.
4.2. Primary Admin User. The Customer authorizes the Primary Admin User to manage the Customer’s Enterprise subscription and any associated Customer billing details. The customer authorizes the Primary Admin User to terminate the Customer’s Enterprise subscription at any time by contacting SurveyMonkey customer support and following account closure procedures. Closing the Primary Admin User account will result in a termination of this Agreement.
4.3. Administrative Responsibilities. The Services are designed to provide the Customer and its Admin Users with the ability to self-manage the Services and Enterprise Accounts. Management and administration of the Enterprise Accounts is the responsibility of the Customer and not SurveyMonkey (including responding to requests for account creation, deletion, and reassignment, and management of opt-in and opt-out communications settings for End Users). SurveyMonkey will not be responsible for any liability arising from adding, removing, or otherwise managing the Customer’s Enterprise Accounts in accordance with the Customer’s instructions.
5. Customer Obligations
5.1. Compliance. The Customer agrees to comply with the “Acceptable Uses” section of the TOU. Depending on which Services the Customer uses or orders, additional terms and policies (including rules, guidelines and other similarly named documents) presented online with those services and available at /mp/policy/ may apply (“Additional Terms”). Those Additional Terms are incorporated into this Agreement if you use those Services.
5.2. Account Security. The Customer is responsible for maintaining the confidentiality of passwords and any other credentials used to access its Enterprise Accounts. The Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and will terminate any unauthorized use of which it becomes aware. The Customer, and not SurveyMonkey, is responsible for any activity occurring in its Enterprise Accounts (other than activity that SurveyMonkey is directly responsible for which is not performed in accordance with the Customer’s instructions), whether or not authorized. The Customer will notify SurveyMonkey promptly if the Customer becomes aware of any unauthorized access to its accounts. Enterprise Accounts may not be shared and may only be used by one individual per account.
5.3. Privacy. The Customer consents to the transfer, processing, and storage of Customer Data in accordance with this Agreement and the TOU, including SurveyMonkey’s “privacy policies” (as defined in the TOU). The Customer agrees with SurveyMonkey’s privacy policies.
5.4. Obligations Concerning End Users. The Customer will:
(a) Ensure that its End Users are governed by, and comply with, this Agreement and the TOU (including any applicable acceptable use policies).
(b) Ensure that any activities that occur in connection with its Enterprise Accounts comply with this Agreement.
(c) Obtain any consents required from each End User to allow the Customer and its Admin Users to engage in the activities described in this Agreement (including adding the End User to the Group and controlling, accessing, and disclosing data from, the End User’s account).
(e) Not provide any Enterprise Accounts, or access to the Services, to persons under the age of 13.
5.5. Third Party Requests. The parties may from time to time receive a request from a third party for records related to an End User’s use of the Services, including information in an End User account or about an End User (“Third Party Request”). Third Party Requests include valid search warrants, subpoenas, court orders, other forms of valid legal process, and any request for records which the applicable End User has given written authorization to disclose.
The Customer is responsible for responding to Third Party Requests via its own access to the information, and will only contact SurveyMonkey if the Customer is unable to obtain such information after diligent efforts. If SurveyMonkey receives a Third Party Request, then, to the extent permitted by law:
(a) SurveyMonkey will inform the third party issuing such request that it should pursue the request directly with the Customer;
(b) SurveyMonkey will use commercially reasonable efforts to: (i) promptly notify the Customer of SurveyMonkey’s receipt of the Third Party Request; (ii) cooperate with the Customer’s commercially reasonable requests regarding the Customer’s efforts to oppose a Third Party Request; and (iii) provide the Customer with the information or tools requested for the Customer to respond to the Third Party Request (if the Customer is otherwise unable to obtain the information by itself); and
(c) if the Customer fails to promptly and satisfactorily respond to any Third Party Request, SurveyMonkey may fulfill that request if we determine that we are required by law to do so.
5.6. Suspension of End Users. If an End User breaches this Agreement or the TOU, or uses the Services in a manner that SurveyMonkey reasonably believes will cause SurveyMonkey liability or disrupt others’ use of the Services, then SurveyMonkey may request that the Customer suspend or close the applicable End User account until the breach has been cured or the use in such manner has stopped. If the Customer fails to comply with such request, then SurveyMonkey may suspend or close the applicable End User account.
5.7. Backups. The Customer is responsible for maintaining, protecting, and making backups of the Customer Data. To the extent permitted by applicable law, SurveyMonkey will not be liable for any failure to store, or for loss or corruption of, the Customer Data or content in an Enterprise Account.
6. Fees and Billing
6.1. Fees for Services. The Customer will pay to SurveyMonkey all applicable fees for the Services. Fees paid by the Customer are non-refundable, except as provided in this Agreement or when required by law.
6.2. Subscriptions. The Services are generally billed on a subscription basis. This means that the Customer will be billed on a recurring, periodic basis for a subscription (each period is called a “billing cycle”). The length of each billing cycle depends on the type of Service purchased (e.g. the type of Enterprise subscription plan). The Customer’s Enterprise subscription will automatically renew at the end of each billing cycle unless auto-renewal is canceled through the Primary Admin User’s online account management page (if that functionality is available), or by contacting our customer support team. The Customer may cancel auto-renewal on its Enterprise subscription at any time, in which case the Customer’s Enterprise subscription will continue until the end of that billing cycle before terminating.
6.3. Taxes. Unless otherwise stated, the Customer is responsible for any taxes (other than SurveyMonkey’s income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, “Taxes”). The Customer will pay SurveyMonkey for the Services without any reduction for Taxes. If SurveyMonkey is obliged to collect or pay Taxes, the Taxes will be invoiced to the Customer, unless the Customer provides SurveyMonkey with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged. SurveyMonkey will not charge the Customer VAT if the Customer provides SurveyMonkey with a VAT number issued by a taxing authority in the European Union, is purchasing the Services from SurveyMonkey Europe for business reasons, and is located in a different European Union member state from SurveyMonkey Europe. If the Customer is required by law to withhold any Taxes from its payments to SurveyMonkey, the Customer must provide SurveyMonkey with an official tax receipt or other appropriate documentation to support such payments.
6.4. Price Changes. SurveyMonkey may change the fees charged for the Services at any time, provided that, for any fees billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of the Customer’s subscription. SurveyMonkey will provide the Customer with reasonable prior written notice of any change in fees to give the Customer an opportunity to cancel auto-renewal on the Customer’s subscription before the change becomes effective.
6.5. Overage Fees. Overage fees will be billed in arrears to the Customer on a monthly basis. Overage fees which remain unpaid for 30 days after being billed are considered overdue. SurveyMonkey may limit the functionality of Enterprise Accounts while overage fees remain overdue. An example of overage fees are the fees associated with the Customer purchasing additional End User accounts in the middle of a billing cycle (in excess of the amount purchased at the start of that billing cycle).
6.6. Payment Method. The Customer authorizes SurveyMonkey to charge for fees using the Customer’s selected payment method. The Customer may designate its payment method and billing details by notifying SurveyMonkey through the Primary Admin User. Unless otherwise agreed, payments for invoices are due 30 days after the invoice date. If the Customer elects to pay by credit card, debit card, or any other billing method that supports automatic recurring payments and that payment method is available, SurveyMonkey will initially attempt to charge the Customer using that billing method when payment is due, and payments will be considered overdue if payment is not received within 30 days of that due date. The Customer agrees to keep its billing and billing contact information current and accurate.
6.7. Other Services. Other products and services offered by SurveyMonkey may be available for purchase through the Services by End Users. Such products and services will be billed to the billing details provided by the applicable End User for that End User account, unless marked otherwise.
6.8. Interest. Overdue payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue. The Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by SurveyMonkey in collecting such overdue amounts, except where the overdue amounts are due to SurveyMonkey’s billing inaccuracies.
7. Intellectual Property
7.1. Ownership and Rights. As between the parties, the Customer retains ownership of all intellectual property rights in the Customer Data, and SurveyMonkey retains ownership of all intellectual property rights in the Services. This Agreement does not grant SurveyMonkey any licenses or rights to the Customer Data except for the limited rights needed for SurveyMonkey to provide the Services, and as otherwise described in this Agreement. Except as permitted by SurveyMonkey’s brand and trademark use policies, this Agreement does not grant the Customer any right to use SurveyMonkey’s trademarks or other brand elements.
7.2. Limited License to Customer Data. The Customer grants SurveyMonkey a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit Customer Data, but only for the limited purposes of providing the Services to the Customer and as otherwise permitted by SurveyMonkey’s privacy policies. This license for such limited purposes continues even after the Customer stops using the Services with respect to aggregate and de-identified data derived from Customer Data and any residual backup copies of Customer Data made in the ordinary course of business. This license also extends to any trusted third parties that SurveyMonkey works with to the extent necessary to provide the Services to the Customer. If the Customer provides SurveyMonkey with feedback about the Services, SurveyMonkey may use that feedback without any obligation to the Customer.
7.3. Customer Lists. SurveyMonkey may identify the Customer (by name and logo) as a SurveyMonkey customer on SurveyMonkey’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
8.1. Definition. “Confidential Information” means information disclosed by a party to the other party in connection with the use of the Services that is marked as confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Despite the foregoing, Confidential Information does not include information that: (a) is or becomes public through no fault of the recipient; (b) the recipient of the Confidential Information already lawfully knew; (c) was rightfully given to the recipient by a third party; or (d) was independently developed by the recipient without reference to the disclosing party’s Confidential Information.
8.2. Confidentiality. Each party will: (a) protect the other party’s Confidential Information using commercially reasonable efforts; and (b) not disclose the Confidential Information, except to affiliates, employees, contractors, agents, and professional advisors who need to know it and who have agreed in writing to keep it confidential. Each party (and any permitted recipient to whom a party has disclosed Confidential Information of the other party) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement. Nothing in this Agreement will prevent SurveyMonkey from using or disclosing the Customer’s Confidential Information in any manner permitted by SurveyMonkey’s privacy policies.
8.3. Compelled Disclosure. Each party may disclose the other party’s Confidential Information when required by law or legal process, but only after it, if permitted by law: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the opportunity to challenge the requirement to disclose.
9. Term and Termination
9.1. Term. This Agreement continues until the Customer’s Enterprise subscription ends or otherwise terminates, or if this Agreement is terminated.
9.2. Termination without Cause. The Customer may terminate this Agreement at the end of a billing cycle by submitting a written request to SurveyMonkey customer support via the Primary Admin User account. SurveyMonkey may terminate this Agreement for any reason by providing at least 90 days’ written notice to the Customer and will provide a pro rata refund of any fees prepaid by the Customer applicable to the period following the termination of this Agreement. SurveyMonkey may terminate this Agreement at the end of a billing cycle by providing at least 30 days’ prior written notice to the Customer.
9.3. Termination for Cause. Each of the Customer and SurveyMonkey may suspend performance or terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. SurveyMonkey may terminate this Agreement if any payment owed by the Customer to SurveyMonkey is more than 30 days overdue.
9.4. Consequences of Termination. If this Agreement terminates:
(a) the rights granted by SurveyMonkey to the Customer under this Agreement will cease immediately, except as set forth in this Section;
(b) all Enterprise Accounts in the Group will be converted to personal accounts (including the Primary Admin User account and Admin User accounts), which will lose functionality specific to the Enterprise Services and remain subject to the TOU (“Downgrade”);
(c) SurveyMonkey may assist the Customer to export any data that existed in its Enterprise Accounts at the time of termination for a reasonable fee. However, SurveyMonkey does not guarantee that all such data will be able to be exported. For example, the account owner may have deleted the data before the time the data export is attempted;
(d) if this Agreement was terminated by the Customer due to SurveyMonkey’s breach, SurveyMonkey will provide a pro rata refund of any fees prepaid by the Customer applicable to the period following the termination of this Agreement; and
(e) SurveyMonkey will bill the Customer, and the Customer will pay, for any accrued but unbilled fees (such as overage fees). The Customer will remain liable to pay any invoices outstanding on the termination date.
9.5. Downgrade Event. The Customer acknowledges that a Downgrade may cause it to lose control of all its Enterprise Accounts upon termination. Enterprise Accounts that have converted to personal accounts will be regarded by SurveyMonkey to be controlled by the End User to whom the account is registered at the time of the Downgrade. Consequently, if the Customer desires to regain control of such accounts, it should contact the applicable End Users. SurveyMonkey generally will not transfer control of such an account without the authorization of the controlling End User.
If the Customer desires to retain control of its Enterprise Accounts following a Downgrade, the Customer is solely responsible for taking actions, before this Agreement terminates, that are necessary to achieve this, such as: (a) reassigning End User accounts to appropriate Customer personnel; (b) changing access credentials to Enterprise Accounts; and (c) exporting data in its Enterprise Accounts and deleting any data it does not desire End Users to have access to following the Downgrade. Where practicable, SurveyMonkey will provide the Customer with advance warning before a Downgrade in order to give Customer the opportunity to perform the foregoing actions.
If the Customer re-purchases the Services following a Downgrade, accounts that were converted to personal accounts as a result of the Downgrade will need to be re-invited to join the Group, if the Customer desires. However, there is no guarantee that each such user will accept that invitation.
9.6. Survival. The following sections will survive the termination of this Agreement: 6, 7.2, 8, 9, 11, 12, 14, and 15.
10.1. Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into this Agreement; and (b) it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.
10.2. Embargoes. The Customer represents and warrants that it is not barred by any applicable laws from being supplied with the Services. The Services may not be used in any country that is subject to an embargo by the United States or European Union applicable to the Services. The Customer will ensure that: (a) its End Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) it does not provide access to the Services to persons 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.
11.1. By Customer. The Customer will indemnify, defend, and hold harmless SurveyMonkey from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with: (a) Customer Data (including claims of intellectual property infringement); (b) the Customer’s use of the Services in breach of this Agreement; and (c) use of the Services by the Customer’s End Users.
11.2. By SurveyMonkey. SurveyMonkey will indemnify, defend, and hold harmless the Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that the SurveyMonkey technology used to provide the Services to the Customer infringes any copyright, U.S. patent, trademark or trade secret of such third party. However, in no event will SurveyMonkey have any obligations or liability under this Section arising from: (a) use of any Services in a modified form or in combination with materials not furnished or authorized by SurveyMonkey; or (b) any content or data provided by the Customer, End Users, or third parties.
11.3. Potential Infringement. If SurveyMonkey believes the Services may infringe or may be alleged to infringe a third party’s intellectual property rights, then SurveyMonkey may: (a) obtain the right for the Customer, at SurveyMonkey’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If SurveyMonkey does not believe that the foregoing options are commercially reasonable, then SurveyMonkey may suspend or terminate the Customer’s use of the impacted Services and provide a pro rata refund of any fees prepaid by the Customer applicable to the period following the termination of such Services.
11.4. Indemnity Procedures. A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defense with its own counsel at its own expense. THE INDEMNITIES IN THIS AGREEMENT ARE A PARTY’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
12. Disclaimers and Limitations of Liability
12.1. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SURVEYMONKEY NOR THE CUSTOMER MAKES WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SURVEYMONKEY PROVIDES THE SERVICES ON AN “AS IS” BASIS AND, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAKES NO REPRESENTATIONS REGARDING THE AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES, OR REGARDING ANY CUSTOMER DATA OR CONTENT IN AN ENTERPRISE ACCOUNT.
12.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SURVEYMONKEY NOR THE CUSTOMER WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE 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 SURVEYMONKEY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY THE CUSTOMER TO SURVEYMONKEY UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$25,000.
12.4. Exceptions to Limitations. The limitations of liability in Section 12.2 (Exclusion of Certain Liability) do not apply to violations of a party’s intellectual property rights by the other party or indemnification obligations.
13.1. Agreement Amendments. SurveyMonkey may amend this Agreement from time to time and the most current version will always be posted on the SurveyMonkey website. If an amendment is material, as determined in SurveyMonkey’s sole discretion, SurveyMonkey will notify you (by email to the address associated with the Group’s Primary Admin User account or each affected Enterprise Account). Except in the case of an amendment being made to satisfy legal requirements, we will provide you with at least 30 days’ notice of material amendments. Notice of amendments may also be posted to SurveyMonkey’s blog, through an Admin Console, or upon your login to your Enterprise Account.
If an amendment has a material adverse impact on the Customer and the Customer does not agree to the amendment, the Customer may terminate the Agreement by notifying SurveyMonkey through this form (https://smforms.wufoo.com/forms/contact-surveymonkey-compliance/) within 30 days of receiving notice of the amendment (otherwise, the Customer is deemed to have consented to the amendment). Upon SurveyMonkey’s receipt of such notification, the Customer will remain governed by the terms in effect immediately prior to the amendment until the end of the then-current billing cycle for the affected Services and then the Agreement will terminate, unless SurveyMonkey agrees to permit the Customer to continue under the prior version of the Agreement. If the affected Services are renewed, they will be renewed under SurveyMonkey’s then-current Agreement. If an End User does not agree to the amended Agreement terms, the End User must stop using their Enterprise Account by the end of the billing cycle. In any other circumstance, by continuing to access or use the Services after the amendments become effective, you agree to be bound by the amended Agreement.
13.2. Other Amendments. Any amendment to this Agreement that is not made to the online version of this Agreement which applies to SurveyMonkey’s general customer base (“Online Agreement”) and that amends this Agreement with respect to the Customer alone, must be in writing, signed by the Customer and SurveyMonkey, and expressly state that it is amending this Agreement. If the Customer signs a physical agreement with SurveyMonkey to receive the Services, that physical agreement will override this Online Agreement in its entirety if the physical agreement so states.
14. Contracting Entity
14.1. Customers in the United States. If Customer has its principal place of business in the United States (as determined by the billing address associated with the Primary Admin User account), the Service is provided by SurveyMonkey Inc. and the following provisions will apply:
- Contracting Entity. References to “SurveyMonkey”, “we”, “us”, and “our” are references to SurveyMonkey Inc., a Delaware corporation located at 101 Lytton Avenue, Palo Alto, CA 94301, United States of America.
- Governing Law. This Agreement is governed by the laws of the State of California (without regard to its conflict of laws provisions).
- Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive venue and jurisdiction of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California with respect to the subject matter of this Agreement.
14.2. Customers in Brazil. If Customer has its principal place of business in Brazil (as determined by the billing address associated with the Primary Admin User account), the Service is provided by SurveyMonkey Brasil Internet Ltda. and the following provisions will apply:
- Contracting Entity. References to “SurveyMonkey”, “we”, “us”, and “our” are references to SurveyMonkey Brasil Internet Ltda., located at Avenida Bernadino de Campos, 98, 3rd Floor, Suite 4, Paraíso District, 04004-040 São Paulo-SP, Brazil.
- Governing Law. This Agreement is governed by the laws of Brazil (without regard to its conflicts of laws provisions).
- Jurisdiction. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party irrevocably submits to the exclusive jurisdiction of the courts of the city of São Paulo, Brazil.
If you have your principal place of business in Brazil and you entered into this Agreement before July 8, 2015, then this Section does not apply and SurveyMonkey Europe will continue to be your contracting entity pursuant to Section 14.3 unless you have expressly agreed to change your contracting entity to SurveyMonkey Brasil Internet Ltda.
14.3. Customers outside the United States and Brazil. If Customer has its principal place of business outside of the United States and Brazil (as determined by the billing address associated with the Primary Admin User account), the Service is provided by SurveyMonkey Europe and the following provisions will apply:
- Contracting Entity. References to “SurveyMonkey”, “we”, “us”, and “our” are references to SurveyMonkey Europe, an Irish company located at 2 Shelbourne Buildings, Second Floor, Shelbourne Road, Dublin 4, Ireland.
- Governing Law. This Agreement is governed by the laws of Ireland (without regard to its conflicts of laws provisions).
- Jurisdiction. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party irrevocably submits to the exclusive jurisdiction of the courts of Ireland.
15. Other Terms
15.1. Assignment. The Customer may not assign this Agreement without SurveyMonkey’s prior written consent (such consent not to be unreasonably withheld). SurveyMonkey may assign this Agreement by providing written notice to the Customer. However, SurveyMonkey may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of SurveyMonkey’s assets or of the SurveyMonkey business line to which the subject matter of this Agreement relates. Any other attempt to transfer or assign is void.
15.2. Entire Agreement. This Agreement (including any documents incorporated herein by reference to a URL or otherwise), and any sales quote, order form or other sales document prepared for the Customer by SurveyMonkey referencing this Agreement (“Sales Document”) constitute the entire agreement between you and SurveyMonkey 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 the Customer do not apply to the Services, do not override or form a part of this Agreement, and are void.
15.3. Force Majeure. Neither SurveyMonkey nor the Customer will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or internet disturbance) that was beyond the party’s reasonable control.
15.4. Independent Contractors. The relationship between SurveyMonkey and you is that of independent contractors, and not legal partners, employees, or agents of each other.
15.5. Interpretation. The use of the terms “includes”, “including”, “such as” and similar terms, will be deemed not to limit what else might be included.
15.6. No Waiver. A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
15.7. Notices. All notices must be in writing and will be deemed given when: (a) verified by written receipt, if sent by postal mail with verification of receipt service or courier; (b) received, if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by email. Notices to SurveyMonkey must be sent to SurveyMonkey, 101 Lytton Avenue, Palo Alto, CA 94301, USA marked to the attention of the Legal Department. Notices to the Customer may be sent to the email address associated with the Customer’s Primary Admin User account. Notices to End Users may be sent to the email address associated with that End User’s account. The Customer and End Users must keep the contact details associated with their Enterprise Accounts current and accurate. The Customer may grant approvals, permission, extensions, and consents by email.
15.8. Precedence. To the extent any conflict exists between them, the Sales Document (if one exists) prevails over this Agreement, and this Agreement prevails over the TOU and any Additional Terms (as defined under the TOU) with respect to the Enterprise Services.
15.9. Severability. If any provision of this Agreement 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.
15.10. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. The Customer’s End Users are not third party beneficiaries to the Customer’s rights under this Agreement.
16. Terms for Certain Customers and Countries
16.1. Language. This Agreement was prepared and written in English. To the extent that any translated version conflicts with the English version, the English version controls, except where prohibited by applicable law.
16.2. Customer-Specific Terms. The following amendments automatically apply to you upon acceptance of this Agreement if you are one of the types of entities identified below:
- If you are a United States Federal Government Agency, this Amendment applies to you, except that references to the “Agreement” in that Amendment are to be read as references to this Agreement, and references to “Content” shall refer to Customer Data.
- If you are a different type of governmental entity in the United States, this Amendment applies to you, except that references to the “TOU” and “Terms” in that Amendment are to be read as references to this Agreement.
16.3. Country-Specific Terms. If you are located in one of the following locations, the terms thereunder apply.
BR1. Additional Obligations Concerning End Users. Without limiting Section 5.4 (Obligations Concerning End Users), the Customer will not provide any Enterprise Accounts, or access to the Services, to persons under the age of 16 who are not represented by their parents or guardians, nor to persons aged 16 or 17 who are not assisted by their parents or guardians.
BR2. Third Party Requests. Despite the provisions of Section 5.5 (Third Party Requests), if SurveyMonkey receives a Third Party Request, as addressee, then SurveyMonkey will, at its sole discretion, comply with such request, file the appropriate appeal, or present its clarifications in response to the request. To the extent permitted by law and by the Third Party Request, SurveyMonkey will use commercially reasonable efforts to promptly notify the Customer of SurveyMonkey’s receipt of the Third Party Request.
FR1. Overdue Payments. Despite anything to the contrary in Section 6.8 (Interest), overdue payments may result in a penalty at an interest rate equal to 3 times the legal interest rate or the statutory minimum rate, whichever is higher. Additionally, the statutory penalty for collection costs may be payable by the Customer in the event of late payment.
FR2. Media. The limited license the Customer grants to SurveyMonkey under Section 7.2 (Limited License to Customer Data) allows SurveyMonkey to exploit the Customer Data in any form and on any medium, including paper or digital media such as hard disks and flash drives, and by any means or process, including by wired, wireless, or online transmission of digitized or analog data. The duration of such limited license extends only for the legal term of protection of the intellectual property rights attached to the Customer Data.
DE1. Specific Works. SurveyMonkey is not obliged to create any specific works for the Customer.
DE2. Liability Provisions. Sections 12.2 (Exclusion of Certain Liability) and 12.3 (Limitation of Liability) do not apply and are replaced with the following: “SurveyMonkey’s liability to you for damages caused by slight negligence will, irrespective of its legal ground, be limited as follows: (a) SurveyMonkey will be liable up to the amount of foreseeable damages typical for this type of contract for a breach of material contractual obligations; and (b) SurveyMonkey shall not be liable for a breach of any non-material contractual obligations nor for the slightly negligent breach of any other applicable duty of care. The foregoing limitations of liability, as well as any other limitations of liability contained in these Terms, will not apply to any mandatory statutory liability, in particular to liability under the German Product Liability Act (Produkthaftungsgesetz), and liability for culpably caused personal injuries. Additionally, such limitations of liability will not apply if and to the extent that SurveyMonkey has assumed a specific guarantee. The foregoing shall apply accordingly to SurveyMonkey’s liability to the Customer for futile expenses. The Customer and each End User is obliged to take adequate measures to avert and reduce damages.”
LU1. Survival. Sections of this Agreement which are expressly stated to survive its termination will not survive indefinitely, but survive for a period of 30 years.