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Effective as of July 1, 2021, SurveyMonkey Inc. will become Momentive Inc. Subsequently, SurveyMonkey Europe UC will become Momentive Europe UC, and SurveyMonkey Brasil Internet Eireli will become Momentive Brasil Internet Eireli.
LAST UPDATED: July 1, 2021
Thanks for using Momentive's products, services, websites, and apps which are branded as “Momentive”, “SurveyMonkey”, “Wufoo” or “GetFeedback” (collectively the “Service(s)”).
Momentive provides a variety of different services. Additional service-specific terms and policies (including rules and guidelines) apply to some Services (“Additional Terms”). Those Additional Terms become a part of your agreement with us if you use those Services. For example, if you use our survey services, the Survey Platform Terms of Service apply.
You can view a full list of Additional Terms in our Legal Center. We refer to the combination of these TOU and any applicable Additional Terms collectively as these “Terms.”
You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.
If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
Certain country-specific terms in Section 15.4 may apply to you if you are located outside the United States.
You agree to pay to Momentive any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify Momentive of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
Our prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.
(a) United States Sales Tax. If we have a legal obligation to pay or collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which, if your billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless you timely provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
(b) Non-United States Sales Tax. If applicable, we will charge you VAT, GST or any other sales, consumption or use taxes that arise in connection with your purchases of Momentive Services unless you provide us with a tax identification number that entitles you to an exemption, a valid tax exemption certificate or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If you are located in a jurisdiction with multiple sales, consumption or use taxes, we may charge you the highest prevailing rate if your billing information is incomplete or inaccurate.
If you are required by law to withhold any Taxes from your payments to Momentive, you must provide Momentive with an official tax receipt or other appropriate documentation to support such payments.
Momentive may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Momentive will provide you with advance notice of any change in fees.
Unless otherwise stated, any overage fees incurred by you will be billed in arrears. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
In the course of using the Services, you may submit content to Momentive (including your personal data and the personal data of others) or third parties may submit content to you through the Services (all of the above will be referred to as your “Content”). We know that by giving us your Content, you are trusting us to treat it appropriately. Momentive’s Privacy Notice, together with any Service-specific privacy notices or statements (collectively, “Momentive privacy notices”), detail how we treat your Content and we agree to adhere to those Momentive privacy notices. You in turn agree that Momentive may use and share your Content in accordance with the Momentive privacy notices and applicable data protection laws. If you are a customer who is operating as “data controller” as defined in the European General Data Protection Regulation 2016/679 (“GDPR”) we have added some additional terms below in Section EU2 to address your obligations under this law. You also agree that you are responsible for notifying these third parties who submit content to you through our Services about the Momentive privacy notices.
Momentive will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including the Momentive privacy notices). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Momentive); (b) was lawfully known to Momentive before receiving it from you; (c) is received by Momentive from a third party without knowledge of breach of any obligation owed to you; (d) is shared in the context of your account being migrated to an organization’s Enterprise account, if your account is registered using a work email address within that organization; or (e) was independently developed by Momentive without reference to your Content. Momentive may disclose your Content when required by law or legal process, but only after Momentive, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
Momentive will store and process your Content in a manner consistent with industry security standards. Momentive has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
If Momentive becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (“Security Incident”), Momentive will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. Momentive will also reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by Momentive.
You retain ownership of all of your intellectual property rights in your Content. Momentive does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
You grant Momentive a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by the Momentive privacy notices. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Momentive's business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide Momentive with feedback about the Services, we may use your feedback without any obligation to you.
You represent and warrant that: (a) you own or control the appropriate rights in and to your Content, including any intellectual property owned by third parties; and (b) you will not submit, upload, or otherwise make available via the Services, any Content or materials that (i) you do not have the rights necessary to use, transmit, publish, or to grant us the license as described herein; or (ii) infringe, misappropriate, or otherwise violate any intellectual property, publicity or other rights of any third party.
Momentive may identify you by name and logo as a customer of the Services on our websites and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
Momentive Inc. responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify our agent for claims of copyright infringement.
Momentive respects the intellectual property rights of others, and we expect our users to do the same. If you believe a Momentive user is infringing upon your intellectual property rights, you may report it through our online form. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.
Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). Except as permitted by our Brand and Trademark Use Policy, these Terms do not grant you any right to use Momentive’s trademarks or other brand elements.
If you submit any feedback or suggestions to us regarding our Services, we may use and share them for any purpose without any compensation or obligation to you.
The Services display content provided by others that is not owned by Momentive. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Momentive is not responsible for any actions you take with respect to your Content, including sharing it publicly. Under no circumstances will Momentive be liable for any Content, any other third-party content or materials, or any loss or damage resulting from your use of, or reliance on, such Content or other third-party content or materials. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
You acknowledge that, in order to ensure compliance with legal obligations, Momentive may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. In the event your Content includes third-party brands, logos or other source identifiers, we may require you to submit a statement of non-affiliation before you may use such Content in connection with the Services. However, Momentive otherwise has no obligation to monitor or review any content submitted to the Services.
Momentive may publish links in its Services to internet websites maintained by third parties. Momentive does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
If you have been issued an account by Momentive in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Momentive, are responsible for any activity occurring in your account (other than activity that Momentive is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Momentive immediately. Accounts may not be shared and may only be used by one individual per account.
Momentive occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Momentive will not be liable for any failure to store, or for loss or corruption of, your Content.
Momentive may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
Momentive may assign you a customer success manager (“CSM”). The CSM may review your use of the Services and your Content to help you to more effectively use the Services, including by providing reporting and usage insight.
If you are an individual, you may only use the Services if you have the power to form a contract with Momentive. If you do not have the power to form a contract, you may not use the Services. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms.
“Minors” are individuals under the age of 13 (or a higher age as provided in certain countries and territories). None of the Services are intended for use by Minors. If you are a Minor in your place of residence, you may not use the Services. By using the Services, you represent and warrant that you are not a Minor.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are 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, you are not permitted to purchase any paid Services from Momentive. You will ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any of the above lists.
You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.
If you use the Services to accept payment card transactions, you must comply with the Payment Card Industry Data Security Standards (PCI-DSS) to the extent they are applicable to your business (the “PCI Standards”). Momentive provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant and the specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Services.
Momentive is responsible for the security of Cardholder Data that is collected, transmitted, stored, or processed by us on your behalf. “Cardholder Data” is defined as a cardholder’s primary account number, and where a full unmasked card number is present, any of the cardholder name, expiration date, and/or service code. Momentive has developed strict security features to protect Cardholder Data, and as such this data may only be used in anticipated ways and stored in appropriate places. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROHIBITED FROM COLLECTING OR ENTERING CARDHOLDER DATA INTO ANY FORM OR DATA ENTRY FIELDS IN THE SERVICES, EXCEPT INTO THOSE FIELDS INTENDED SOLELY FOR THAT PURPOSE (i.e. where Momentive explicitly enables such data to be entered into such fields). Appropriate fields are clearly marked with labels such as ‘Card number’ or by having a credit card icon precede them. Similarly, excluding payment forms, you must never collect or enter any “Sensitive Authentication Data”, as defined by the PCI Standards (including CVC or CVV2) into any fields in the Services. You assume all responsibility for any Cardholder Data entered into the Services in violation of these terms.
You can terminate your Subscription and delete your account at any time through your account management page. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately and you will not be charged again for that Subscription unless you purchase a new one. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; (b) a refund is required by law; or (c) we, in our sole discretion, determine a refund is appropriate. For clarity, we will not grant a refund where you have used our Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.
Momentive may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. Momentive may terminate your Subscription for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. Momentive may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after Momentive has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, Momentive may limit, suspend, or terminate the Services to you: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, depending upon the reason, we will endeavor to give you advance notice and an opportunity to obtain a copy of your Content from that Service. However, there may be time sensitive situations where Momentive may decide that we need to take immediate action without notice. Momentive will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. Momentive has no obligation to retain your Content upon termination of the applicable Service.
If Momentive stops providing the Services to you because you repeatedly or egregiously breach these Terms, Momentive may take measures to prevent the further use of the Services by you, including blocking your IP address.
Momentive may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the Momentive website. If an amendment is material, as determined in Momentive’s sole discretion, Momentive will notify you by email. Notice of amendments may also be posted to the Momentive blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Momentive to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
Momentive constantly changes and improves the Services. Momentive may add, alter, or remove functionality from a Service it provides to you at any time without prior notice. Momentive may also limit, suspend, or discontinue a Service provided to you at its discretion. If Momentive discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from that Service. Momentive may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account.
Any responses over your SurveyMonkey Basic (free) plan's response limits will not be viewable, and each response over the limit will be deleted 60 days after it is received, unless you upgrade to a SurveyMonkey paid plan to view and keep access to all responses before they are deleted. We encourage you to go to My Surveys to see which surveys have extra responses over your plan's response limit, in case you want to upgrade to a paid plan to view and keep them.
While it is in Momentive’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY GUIDANCE OR RECOMMENDATIONS THEREIN ARE PROVIDED “AS IS” AND MOMENTIVE DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, MOMENTIVE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF MOMENTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF MOMENTIVE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO MOMENTIVE FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$200.00.
We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
If you are a business, you will indemnify and hold harmless Momentive and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) (“Indemnification Amounts”) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.
If you are any kind of user, you will indemnify and hold Indemnified Entities harmless from any Indemnification Amounts arising out of a breach of your obligation in Section 1.3 to ensure your tax exemption certificate, if any, accurately reflects your current tax status.
Unless otherwise noted, the Services are provided by, and you are contracting with, Momentive Inc. inside of the United States, by Momentive Brasil Internet Eireli inside of Brazil, and by Momentive Europe UC everywhere else.
For any Service provided by Momentive Inc., the following provisions will apply to any terms governing that Service:
For any Service provided by Momentive Europe UC or, in relation to Wufoo Services, the following provisions will apply to any terms governing that Service:
For any Service provided by Momentive Brasil Internet Eireli, the following provisions will apply to any terms governing that Service:
You may not assign these Terms without Momentive’s prior written consent, which may be withheld in Momentive’s sole discretion. Momentive may assign these Terms at any time without notice to you.
These Terms (including the Additional Terms) constitute the entire agreement between you and Momentive, 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 you do not apply to the Services, do not override or form a part of these Terms, and are void.
The relationship between you and Momentive is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
To the extent any conflict exists, the Additional Terms prevail over this TOU with respect to the Services to which the Additional Terms apply.
If any provision of these Terms 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.
There are no third party beneficiaries to these Terms.
The following sections will survive the termination of these Terms: 1, 2, 3.2, 10, 12, 13, 14, 15, 16, and 17.
These Terms are 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.
The following amendments automatically apply to you upon acceptance of these Terms if you are one of the types of entities identified below:
If you are using Wufoo Services, the following terms apply:
(a) Abuse of the API or excessively frequent requests to Wufoo via the API may result in the temporary or permanent suspension of your access to the API. Momentive, in its sole discretion, will determine if your usage constitutes abuse or excessive usage of the API. Momentive will endeavor to warn the account owner via email prior to suspension. While Momentive strives to have the API available without interruption, Momentive cannot guarantee any uptime for the API.
(b) You agree not to use the API in any way that is unlawful or harms Momentive, its service providers, your end users, or any other person.
(c) Momentive may modify, restrict or discontinue, at any time, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
(d) You agree to assist Momentive, at its request, to verify compliance with these Wufoo Terms by providing us with information about your Application, including providing us with access to it and/or other materials related to your use of the API.
(e) The API is currently provided for free, but Momentive reserves the right to charge for use of the API in the future. If Momentive charges a fee for use of the API, you do not have any obligation to continue using it.
If you are located in one of the following locations, the terms thereunder apply (with the exception of section EU2, which applies to you irrespective of geographic location if you are a “data controller” as referred to in the GDPR).
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 younger than 16 years old, you must be represented by your parents or guardians in order to agree to these Terms and to use the Services. 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 12.1 (Disclaimers); (b) Section 12.2 (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 12.3 (Limitation of Liability) will not apply to you.
EU1. 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).
EU2. GDPR Terms for Customers
EU 2.1 Effective Date and Definitions.
These additional terms will apply to you from May 25, 2018, where you are a customer operating as a “data controller” of “personal data” of “data subjects” located in the EU (as those terms are defined in the GDPR) in your use of the Services.
The terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the GDPR.
EU 2.2 Processing Instruction.
By requesting the Services and agreeing to these Terms and the Momentive privacy notices, you are providing us with instructions to process any personal data collected by you through the Service, on your behalf.
EU 2.3 Customer Obligations.
You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to Momentive so that Momentive may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by Momentive in the provision of the Services.
EU 2.4 Momentive Obligations.
Where Momentive is processing personal data on your behalf, it will:
(a) only do so on your documented instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that these terms and the Momentive privacy notices constitute such documented instructions;
(b) ensure that all Momentive personnel involved in the processing of personal data have committed themselves to confidentiality;
(c) where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by Momentive and is not otherwise available to you through your account and user areas or on Momentive websites, provided that you provide Momentive with at least 14 days’ written notice of such an information request;
(d) promptly redirect a data subject to you where they are seeking to exercise their rights in respect of any personal data collected by you through use of the Services, and where the data subject has difficulty reaching you directly, we will assist them in doing so where possible;
(e) upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 9-12 months after data is deleted from an account);
(f) to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services; and
(g) inform you immediately if, in our opinion, an instruction to process personal data you have provided infringes the GDPR.
EU 2.5 Momentive sub-processors.
Momentive uses trusted partners in facilitating certain elements of our Services (“sub-processors”). By agreeing to these Terms, you provide a general authorization to Momentive to engage onward sub-processors, subject to compliance with the requirements set out here. If you wish to receive a list of sub-processors who handle personal data for Momentive please complete our form here. On completion of this form and entry of your details through our system, you will receive updates when we add any new sub-processors to this list and you will have 15 days to object to any additions to the list before the change is implemented by us. If you object to a particular sub-processor, who we cannot disassociate from your Services, your sole remedy will be to terminate your subscription relating to the Services that cannot be reasonably provided without the objected-to new sub-processor. Such termination will be without a right of refund for any fees prepaid by you for the period following termination.
EU 2.6 Liability.
Momentive will be liable for the acts and omissions of its sub-processors to the same extent Momentive would be liable if performing the services of each of those sub-processors directly under these Terms, except as otherwise set forth in these Terms and Momentive ensures that all sub-processors on the sub-processor list are bound by contractual terms that are in all material respects no less onerous than those contained in these Terms.
EU 2.7 Security Measures.
Momentive has, taking into account the state of the art, cost of implementation and the nature, scope, context and purposes of the Services and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data and as specified in our Security Statement which is incorporated by reference into these Terms. At reasonable intervals, Momentive tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.
EU 2.8 Audits.
You will allow one month for Momentive to respond to any audit request which you make. No person/party conducting an audit on your behalf, shall be, or shall act on behalf of, a competitor of Momentive (“Auditor”). You will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than 1 audit in that same year (in which circumstances you and Momentive will, in advance of any such audits, agree upon a reasonable reimbursement rate for Momentive’s audit expenses). The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Services to vary this format for audit):
(a) Momentive agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of Momentive’s (or Momentive affiliate’s) most recent penetration tests, which summary shall include remedial actions taken by Momentive resulting from such penetration tests.
(b) The scope of the certifications and penetration tests provided will be limited to Momentive systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Services obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by Momentive.
(c) You will promptly notify and provide Momentive with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.
The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this section sets out the entire scope of your audit rights as against Momentive.
EU 2.9 International Transfer.
To the extent applicable, Momentive Europe UC relies (in order of precedence) upon (i) any adequacy decisions made by the European Commission at any time; and/or (ii) standard contractual clauses, for data transfer to the United States to Momentive Inc. Momentive Europe UC also relies on standard contractual clauses for data transfers to other third parties based in countries outside the European Economic Area, the United States, or countries that do not have adequate levels of data protection as determined by the European Commission. To the extent applicable, you appoint Momentive as your agent for purposes of entering into any standard contractual clauses for such purposes on your behalf under these Terms. If you hold a qualifying account and are availing of the Momentive Data Processing Agreement with standard contractual clauses, the terms set out in that Data Processing Agreement with standard contractual clauses are supplementary to these Terms and, where there is a conflict between the terms of that Data Processing Agreement with standard contractual clauses and these Terms, the terms of the Data Processing Agreement with standard contractual clauses will prevail.
EU 2.10 Liability for Data Processing.
The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Section EU2 shall be as set out in these terms, unless otherwise agreed in writing.
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 12.3 (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 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 12.2 (Exclusion of Certain Liability) and 12.3 (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 12.2 (Exclusion of Certain Liability) and 12.3 (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.