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LAST UPDATED: October 10, 2022
Nothing in these Terms will restrict, exclude, or modify, or purport to restrict, exclude, or modify, any statutory consumer rights under the Competition and Consumer Act 2010 (Cth).
BR1. Additional Responsibilities.
If you are aged 16 or 17, you must be assisted by your parents or guardians to agree to these Terms and to use the Services.
BR2. Right of Withdrawal.
If you are a consumer, you may withdraw your Subscription within 7 days of the date your Subscription first starts by sending us a notice of withdrawal. If you withdraw your Subscription under this Section, the fees you paid for that Subscription will be refunded upon Momentive’s receipt of your notice of withdrawal.
BR3. Consumer Rights.
If you are a consumer: (a) statutory warranties provided in the Law No. 8.078/1990 (“Consumer Protection Code”) apply to you despite anything to the contrary in Section 13.1 (Disclaimers); (b) Section 13.2 (Exclusion of Certain Liability) will not apply to you in relation to the damages caused to you due to defects in the Services, as provided by Article 14 of Law No. 8.078/1990 (“Consumer Protection Code”); and (c) Section 13.3 (Limitation of Liability) will not apply to you.
EU1. Data Processing Agreement.
The Momentive Data Processing Agreement is incorporated in these Terms by reference and are supplemental to these Terms. Where there is a conflict between the Data Processing Agreement and these Terms, the Data Processing Agreement will prevail except with respect to Exclusion and Limitation of Liability where these Terms will prevail.
The following terms only apply to customers who use our Services as consumers (i.e., primarily using our Services for personal, family or household use and not for business or professional purposes, such as those primarily for a trade, business, association, craft or profession) and who have a permanent or habitual residence in the European Union.
EU2. Right of Withdrawal.
In certain European countries, you have a legal right to cancel Subscriptions within a certain period of time. For details, see the country-specific terms for your country and our Subscription Cancellation Policy (Europe only). For Wufoo Services, see our Wufoo Subscription Cancellation Policy and VAT Info (EU Only).
EU3. Changes to Services.
Momentive constantly changes and improves the Services by developing new technologies and features. As we improve our Services, we may modify the Services by adding, altering, or removing functionality/features from a Service, by changing usage limits, or by offering new products or services and discontinuing or limiting or suspending old products or services (provided that we will only discontinue, suspend or limit our Services for a valid reason).
We may modify our Services for the following reasons:
• to make legally required updates so that we can comply with applicable law;
• to adapt to new technologies;
• to enhance or update our products, services, features and functionalities such as to address customer feedback;
• to prevent abuse or harm;
• to reflect changes with our third party service providers;
• to address safety and security issues;
• to reflect increases or decreases in the number of Momentive Users.
Where we modify our Services beyond what is necessary to ensure the Services conform with the contract we have entered into with you, and this materially and negatively impacts your access to or use of the Services we will, where reasonably possible, inform you in advance of the change, provide you with details of the features that will be modified as well as the time for the modification and inform you of your right to terminate your contract with us free of charge (where applicable).
You will not have a right to terminate where the negative effect of the modification is minor or where we have enabled you to maintain and use an unmodified version of the Services without additional cost. Where you exercise your right to terminate under this Section we will offer a pro rata refund for any period of time you did not use the relevant Service(s) in that billing cycle and for which you have prepaid for. We will also provide you with an opportunity to export or download your Content from the Services, subject to applicable law and policies.
Where there are urgent circumstances, we may not be able to provide you with advance notice of the modification, for example, where we are required to modify the services to comply with a court order or applicable law or to address safety and security issues.
EU4. Legal Warranty.
To comply with our obligations under EU law we are required to supply the Services to you in conformity with our contract with you and as required under applicable law. You may have certain consumer law rights under the applicable law of your country of residence in situations where we do not comply with the EU Legal Warranty including, for example, a right to refund or a right to terminate in certain circumstances. Nothing in these Terms seeks to limit or exclude these rights.
Where you use our Services as a consumer who has a permanent or habitual residence in the European Union, you have certain rights which cannot be excluded or limited. This includes certain rights in relation to non-compliance with the EU Legal Warranty. Nothing in these Terms will limit or exclude those mandatory statutory consumer rights. Except as expressly provided for in these Terms and as required by applicable law, Momentive does not give any specific promises about the Services and while we try to keep our online Services up, they may be unavailable from time to time for various reasons. For example, a short-term interruption in the supply of the Services which is negligible or which is once-off shall not be deemed a lack of conformity or breach of these Terms.
EU6. Limitation of liability.
Where you use our Services as a consumer who has a permanent or habitual residence in the European Union, we are responsible for providing the Services in conformity with the contract. Nothing in these Terms seeks to limit or exclude our liability which is prohibited under applicable law. For example, nothing in these Terms limit our liability for fraud or personal injury caused by our negligence. Except as otherwise provided for under applicable law or as expressly stated in these Terms, Momentive is only responsible to you for your losses and damages that are a reasonably foreseeable result of our failure to use reasonable skill and care or that directly result from our material breach of these Terms.
Disputes. Please be aware that if you are located in the European Union, you have the option of referring a complaint to the European Online Dispute Resolution Platform.
FR1. Overdue Payments.
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 you in the event of late payment.
FR2. Right of Withdrawal.
If you are a consumer, starting from the date your Subscription first starts, you have 14 days to exercise your right of withdrawal without cause, provided that you have not benefited from or started to use the Services before the end of that 14 day period.
The limited license you grant to Momentive under Section 3.2 (Limited License to Your Content) allows Momentive to exploit your Content 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 your Content.
If you are a consumer, statutory warranties and the warranty of merchantability apply to you despite anything to the contrary in these Terms. Any disclaimer of warranties in these Terms does not derogate from any of your statutory warranty rights listed below:
Article R. 211-4 of the French Consumer Code: “In contracts entered into between professionals, on the one hand, and, on the other hand, non-professionals or consumers, the professionals cannot contractually warrant the item to be delivered or the service to be rendered without clearly stating that, whatever the circumstances, the legal warranty binding the professional seller to cover the purchaser against any consequences of faults or hidden defects in the item being sold or the service being rendered, applies.”
Article L. 211-4 of the French Consumer Code: “The seller is required to deliver a product which is conformed to the contract and is held liable for any lack of conformity which exists upon delivery. He is also held liable for any lack of conformity caused by the packaging or the assembly instructions, or the installation if he assumed responsibility therefor or had it carried out under his responsibility.”
Article L. 211-5 of the French Consumer Code: “To be in conformity with the contract, the product must: (1) be suitable for the purpose usually associated with such a product and, if applicable: correspond to the description given by the seller and have the features that the seller presented to the buyer in the form of a sample or model; [and] have the features that a buyer might reasonably expect it to have considering the public statements made by the seller, the producer or his representative, including advertising and labeling; or (2) have the features defined by mutual agreement between the parties or be suitable for any special requirement of the buyer which was made known to the seller and which the latter agreed to.”
Article L. 211-12 of the French Consumer Code: “Action resulting from lack of conformity lapses two years after delivery of the product.”
Article 1641 of the French Civil Code: “A seller is bound to a warranty on account of the latent defects of the product sold which render it unfit for the use for which it was intended, or which so impair that use that the buyer would not have acquired it, or would only have given a lesser price for it, had he known of them.”
Article 1648 §1 of the French Civil Code: “The action resulting from redhibitory vices must be brought by the buyer within a period of two years following the discovery of the vice”.
Section 13.3 (Limitation of Liability) does not apply to you if you are a consumer.
DE1. Right of Withdrawal.
If you are a consumer, you may withdraw your contractual declaration within 14 days without giving reasons in text form (e.g. by mail, fax, email). The time period commences upon your receipt of this information notice in textual form, but not before the conclusion of the contract and also not before we have met our information requirements as set forth under Article 246 § 2 in conjunction with § 1 paragraph 1 and 2 of the Introductory Act to the German Civil Code and our information requirements under § 312 g paragraph 1, first sentence German Civil Code in conjunction with Article 246 § 3 of the Introductory Act to the German Civil Code. Punctual dispatch of the declaration of withdrawal suffices to observe the withdrawal period. The declaration of withdrawal has to be directed to our customer support team by email through our Help Center.
DE2. Consequences of Withdrawal.
In the case of a valid withdrawal, the mutually received deliverables will be returned and any benefits obtained, if any (e.g. interest), will be handed over. To the extent that you are unable to return or, where applicable, to deliver up the received deliverable and benefits obtained (e.g. use and enjoyment) in whole or in part, or only in a deteriorated condition, you may have to compensate us accordingly for loss of value, if any. This may possibly lead to the result that you will nevertheless have to fulfill the contractually owed payment obligations for the time period until withdrawal. Any obligation to reimburse payments must be fulfilled within 30 days. The period for the payment of costs will begin, in your case, with the dispatch of your declaration of withdrawal and in our case, upon receipt of same.
DE3. Special Notifications.
Your right of withdrawal expires prematurely if the contractual relationship was fully discharged by both sides at your explicit request before you have exercised your right of withdrawal.
DE4. Termination for Breach. A failure to comply with these Terms must be material, repeated, or persistent before Momentive may exercise its right of termination under Section 10.2 (By Momentive).
DE5. Specific Works.
Momentive is not obliged to create any specific works for you.
DE6. Liability Provisions.
Sections 13.2 (Exclusion of Certain Liability) and 13.3 (Limitation of Liability) do not apply and are replaced with the following: “Momentive’s liability to you for damages caused by slight negligence will, irrespective of its legal ground, be limited as follows: (a) Momentive 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) Momentive will 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 above 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 Momentive has assumed a specific guarantee. The above will apply accordingly to Momentive’s liability to you for futile expenses. You are obliged to take adequate measures to avert and reduce damages.”
JP1. Privacy Disclosures.
You agree that you are responsible for notifying the respondents of any surveys that you create through the Services about how Momentive may use the respondents’ survey responses and personal data as described in the Privacy Notice and obtaining a prior consent for disclosing personal data to Momentive from the respondents of your surveys.
Sections 13.2 (Exclusion of Certain Liability) and 13.3 (Limitation of Liability) will not apply in relation to the damages caused by the willful misconduct or gross negligence of Momentive, its affiliates, officers, employees, agents, supplier, or licensors.
KR1. Right of Withdrawal.
If you are a consumer, you may withdraw your Subscription within 7 days of the date your Subscription first starts (or the date a copy of these Terms are made available to you, if later), provided that you have not benefited from or started to use the Services before the end of that 7 day period. If you withdraw your Subscription under this paragraph, the fees you paid for that Subscription will be refunded within 3 business days of receiving your notice of withdrawal.
Despite anything to the contrary in these Terms, if you are a consumer, we will provide you with advance notice of assignment and an opportunity to terminate these Terms as required by Korean law.
Sections of these Terms which are expressly stated to survive its termination will not survive indefinitely, but survive for a period of 30 years.