Terms & Conditions

1.   ACCESS RIGHTS AND RESTRICTIONS

1.1 Access.  Subject to Customer's compliance with the terms and conditions of this Agreement, QuestionPro hereby agrees that Customer has the right, during the term of this Agreement, to use the QuestionPro Web Service in accordance with the applicable Guidelines (Appendix 3) for the purposes of creating, distributing and evaluation of surveys[QP1]. The service is hosted on QuestionPro's web server.

1.2 Limitations.  You may not (i) reverse engineer, decompile, disassemble or otherwise disclose the source code, object code or algorithms of the Service, nor may (ii) modify, translate or create derivative services based on the Service . You may also not (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer the Service, (iv) or allow third parties to access it (except for its end users, as described in Section 1 provided). Removing or changing any proprietary notices (v) or labels is also not permitted. Customer will use the Service only in accordance with (vi) the SOW (Schedule 1) (vii) and the rights granted hereunder and (viii) in accordance with all applicable laws and regulations.

1.3 Ownership.  Except for the rights expressly granted in this Section 1, QuestionPro retains all right, title and interest in and to the Service provided. This also applies to data and applications within the service, works and other intellectual property created, used or provided by QuestionPro for the purposes of this contract. The customer owns all self-posted content, feedback obtained via initiated surveys and other intellectual property that the customer transmits to the service, such as questionnaires, logos, graphics, multimedia elements, etc. To the extent that the customer receives feedback on the survey service, for example in With regard to usability, performance, interactivity, error reporting or similar, the customer grants QuestionPro a non-exclusive, permanent, irrevocable, sublicensable, royalty-free worldwide right to use, reproduce, display and evaluate.

2.   PAYMENT

The Customer shall pay QuestionPro the usage fees for the Service provided in advance in the manner set out in the SOW (“Fees”). The customer undertakes to provide QuestionPro with valid, current and complete contact and billing data. All invoices issued under this agreement must be paid within 14 days of the invoice date.

If the customer does not cancel by the last day of the term, the contract is automatically extended by the previous contract term. For annual subscriptions, the fee for the subsequent contract period is due 30 days before the end of the contract. Unpaid invoices will be subject to a charge of 1,5% per month or the maximum permitted by law, whichever is less, plus any collection costs.

3. TERM AND TERMINATION

Subject to early termination, this agreement begins on the day the service provided by QuestionPro is used and remains valid until the end of the contract term, even after contract extension.

Either party may terminate this Agreement if either party materially breaches this Agreement and fails to cure such breach within 30 days of receipt of written notice. Upon termination of this Agreement, all rights granted to Customer herein will terminate. The following provisions shall survive termination of this Agreement: Sections 1.2, 1.3, 2, 3, 4, 4, 6, 7, 8 and 9.

4. CONFIDENTIALITY

During the term of this Agreement, all materials and information exchanged between the parties are considered confidential and may only be used internally for the purposes described below. The obligations under this Section 4 do not apply to information generally made available to the public without breach of this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information to third parties to the limited extent necessary to exercise its rights or perform its obligations under this Agreement. The prerequisite for this is that third parties are obliged to maintain confidentiality in writing.

5. COMPENSATION

Customer will do everything possible to keep harmless from the QuestionPro Service, such as claims, actions, settlements, judgments, damages, losses, liabilities, costs and expenses (including attorneys' fees) arising out of or in connection with Customer Content provided by Customer or its end users are submitted to the Service (including Customer Content that infringes the rights of third parties or otherwise violates any law or regulation); provided that QuestionPro will provide Customer with (i) prompt written notice of all claims and threats thereof, (ii) sole control of all defense and settlement activities, and (iii) any reasonably requested assistance with respect thereto. QuestionPro will indemnify the customer against all third-party claims (and all resulting damages awarded to third parties, as well as costs and expenses, including reasonable legal fees) arising from any breach of duty due to the use of our service, provided that the Customer QuestionPro (iv) is immediately informed in writing of the breach of duty and the resulting claims and demands. QuestionPro is not responsible for injuries to third parties resulting from the service if these have not been reported in writing in a timely and detailed manner.

6. WARRANTY, DISCLAIMER

QuestionPro warrants that it will use commercially reasonable efforts to (i) provide the Service in accordance with the Support Terms attached as Exhibit 2 and (ii) promptly correct any verifiable defects in the Service of which QuestionPro is aware. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, QUESTIONPRO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. QuestionPro does not guarantee the results obtained through the use of the service.

7. LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for personal injury, neither party shall be liable with respect to any subject matter of this agreement under any legal or equitable theory for any failure (i) or interruption of use, loss or inaccuracy or corruption of data, or the cost of obtaining substitute goods , services or technologies; (ii) for any indirect, punitive, incidental, consequential damages, even if either party has been advised of the possibility of such loss or damage; (iii) for matters beyond that party’s control; for (iv) overpayments or fees that the customer does not claim back within the contract term. The limitations of liability contained herein do not apply to violations of Sections 1.2 or 4.

8.   NON-SOLICITATION

Up to one (1) year after termination of this Agreement, Customer will not encourage or request that QuestionPro employees or consultants leave QuestionPro for any reason.

9.   ESSENTIAL LICENSE / ADVANCED EVALUATION / ENTERPRISE EVALUATION / STUDENT & ACADEMIC SPONSORSHIP

For simple surveys or for archiving purposes, QuestionPro provides its users with a free Essential Version. However, this only contains basic functions that can be used to record up to 100 responses.

Further information on this: In the event of a downgrade of the QuestionPro user account from a commercial license (e.g.: ADVANCED, Enterprise, Workforce, CX, XA, Community, Audience, NPO) or from one of the free evaluation licenses (ADVANCED Eval / ENTERPRISE Eval ) or one of the Academic Sponsorship versions (Student, Academic Sponsorship) to the ESSENTIAL version, all previously used functionalities are no longer applicable and are only limited to the basic functions of the Essential license. Full access to the survey data may sometimes only be limited or no longer possible if functions of the higher license were previously used. To make access possible again, the Essential license can be upgraded at any time.

When using one of our free user accounts (e.g.: ESSENTIAL, ADVANCED Eval, ENTERPRISE Eval, Student Sponsorship, Academic Sponsorship), there is no entitlement to the use of the functions provided or to the survey results themselves. The provision is voluntary and not guaranteed. These free licenses can be terminated or restricted at any time by QuestionPro. A legal claim is excluded. However, the application of the GDPR regulations within our European data center is guaranteed in any case.

It is not permitted to use QuestionPro's 14-day evaluation license to conduct a survey in such a way that it exceeds the character of a test survey. Please also keep in mind that survey data that you have carried out with question types that are not included in the Essential version will not be available to you after the test phase has ended. However, you will not lose this data, but you will only be able to access data again if you have the corresponding license variant licensed.

10.   VARIOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and therefore enforceable. This Agreement is not assignable by a party except with the prior written consent of a party, provided that a party may transfer and assign its rights and obligations under this Agreement without consent to a successor of all or substantially all of its assets or business to which this Agreement relates can. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all prior written and oral agreements, communications and other understandings relating to the subject matter hereof. All waivers and modifications must be in writing signed by both parties. No agency, partnership, joint venture, or employment is created by this Agreement, and Customer has no authority of any kind to bind QuestionPro in any manner. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement will be brought at the venue in Berlin.

11. Changes to the Services Provided

QuestionPro is constantly innovating and developing the services it provides to provide our users with the best possible experience. You acknowledge and agree that the form and nature of the Services may change from time to time without notice. Changes in the form and nature of the Services may include, without limitation, the modification or removal of any functionality or aspect of the Services. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Services. You also agree that we may impose limits on certain features and services or restrict your access to parts of the Services without notice or liability. (For example, if you use our free subscription, you will not enjoy all of the benefits available to subscribers to the paid QuestionPro subscription).

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ANNEX 1

Description of services

(Statement of Work)

(“SOW”)

Initial subscription period / term:

1. The initial subscription period is twelve (12) months.
2. The first subscription period begins on the effective date.
3. The payment period is 14 days net from the invoice date.

 

ANNEX 2

QuestionPro Service Level Agreement

(“SLA”)

QuestionPro will use all commercially reasonable efforts to provide the Service to the Customer with a percentage of at least 99,95% within the Performance Period (see below). The operating time is calculated by QuestionPro. In the event that QuestionPro does not meet the availability obligation, the customer's sole remedy is to request a credit for an additional, free month of use.

Unavailable means that the customer will not be connected to the service for a period of 5 minutes.

The uptime percentage is calculated by subtracting from 5% the percentage of 100-minute periods during the uptime calculation in which the service was in an unavailable state, excluding downtime resulting directly or indirectly from “Service Level exclusions” result.

“Service Level Exclusions” are downtime that may not be deducted in calculating a downtime percentage, including (i) downtime caused by factors beyond QuestionPro's control, including force majeure and problems, that lie outside the demarcation point of the QuestionPro servers; (ii) downtime resulting from acts or omissions of Customer or third parties; (iii) downtime resulting from periodic maintenance or patch builds; (iv) downtime resulting from upgrades or maintenance to the Service itself for which QuestionPro has previously distributed notice; (v) Downtime resulting from the suspension and termination of Customer's right to use the Service in accordance with the Agreement or QuestionPro's policies.

The term calculation period is the period of 365 days immediately preceding the date on which the customer sends a confirmed complaint by email to his customer service representative. If the Customer has been using the Service for less than 365 days, the term calculation period will still be considered the previous 365 days, but all days before the Customer becomes a paying user will be considered 100% available. Any failure that occurred prior to a successful claim of a service credit cannot be used for future claims.

QuestionPro will make every effort to limit scheduled maintenance to off-peak periods. Any major upgrades or scheduled maintenance to QuestionPro's service will be announced via email notification.  

Any complaint must be received by the customer service representative within 30 days of a complained about unavailability event. The claim must include (i) the text “SLA CLAIM” in the subject line, (ii) the dates and times of each claimed unavailability event, and (iii) logs or documentation confirming Customer's disputed unavailability.

ANNEX 3

USAGE POLICY

ANTI-SPAM AND EMAIL POLICY.

QuestionPro expressly prohibits any SPAM (the term “SPAM” stands for the sending of unsolicited emails to third parties who are unknown to the sender). If Customer is found to be using the Service for SPAM, Customer's account will be terminated immediately. The Service may only be used in connection with email lists for which recipients have voluntarily subscribed. Using the Service to send emails to an address that Customer receives without the recipient's consent is a violation of these Terms of Use. Customer is prohibited from importing email addresses of persons other than themselves have expressly and clearly decided to receive mailings from the customer. The customer only sends emails to people who have willingly registered to receive customer mailings. If QuestionPro receives complaints about Customer's activities under this Policy, Customer's account may be terminated immediately. Customer will not send emails under a company or organization name other than their own company/organization, and Customer will not send emails with fraudulent or misleading header or source information. All emails sent via the service must be expressly for the purpose of collecting data as part of the feedback process. Sending emails through the Service other than to obtain feedback is a violation of these Terms of Use. Customer is fully responsible for the content of their messages and the consequences of such messages. QuestionPro assumes no responsibility or liability for messages or other content created by the customer. Customer shall not send, publish, distribute or disseminate any defamatory, obscene or otherwise unlawful message, material or information, including another person's proprietary information (including trademarks, trade secrets or proprietary information), without the express permission of the rights holder.

VARIOUS

Customer may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or method or similar or equivalent manual process (i) to access any part of the Service , copy or monitor it; (ii) reproduce in any way the navigation structure or presentation of the Service. (iii) Customer will not attempt to obtain possession of any materials, documents or information through any means not expressly made available for the Service. In addition, Customer may not use any device, software or other routine to interfere with or prevent the proper working of the Service or any transactions conducted through the Service. QuestionPro reserves the right to block such activities.

The customer is not authorized to gain access (i) to any part or function of the service, (ii) to systems or networks connected to the service, (iii) to a QuestionPro server or (iv) to a of the services offered on or through the Service through hacking, password mining or other unlawful means.

Customer may not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures of the Service or any network connected to the Service. Customer may not trace or attempt to trace any information about any other user or visitor to the Service or any other customer of QuestionPro, or the Service or any service or information made available or offered by or through the Service for its own purposes to use.

The Customer may not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or QuestionPro's systems or networks or the systems or networks connected to the Service. In the event of such actions, QuestionPro reserves the right to take measures to ensure the quality and availability of the service for all other QuestionPro users.

Customer may not forge headers or otherwise manipulate identifiers in order to disguise the origin of a message or transmission. In connection with the service, the customer may not pretend (e.g. by impersonation) that the customer is another natural or legal person. For surveys sent in connection with the Service, Customer may not attempt to remove identifying footers such as “Powered by QuestionPro” or similar messages.

The customer is prohibited from using the service in a way that damages the image or rights of QuestionPro, other customers or third parties.

Customer is prohibited from transmitting sensitive personal data or personal health information through the Service.

QuestionPro GmbH reserves the right, at its own discretion, to remove, modify, prevent access or refuse publication of customer content that, in QuestionPro's opinion, violates the general agreements, these terms of use or the law.

Data protection officer in accordance with Section 38 of the Federal Data Protection Act (BDSG) and Article 37 of the General Data Protection Regulation (GDPR)

Jörg ter Beek
Cortina Consult GmbH
Hafenweg 24
48155 Munster
Tel: (0)251 – 29 79 47 40
E-Mail:  dsb.questionpro@cortina-consult.de