Last updated: July 21, 2010
Please read this document carefully. This document governs your relationship with SurveyMonkey Spain, Sucursal em Portugal, with offices located at Rua Ivens, 3, Edificio D. Mecia, 5th floor, Suite W, 9000-046 Funchal, Portugal, and its affiliates (including SurveyMonkey.com, LLC) (collectively, “SurveyMonkey“). Set forth below are the terms and conditions under which SurveyMonkey makes available its internet websites, including www.surveymonkey.com and www.surveymonkey.net (collectively, the “Site“), and the services available through the Site or otherwise provided by SurveyMonkey (the “Services“), to each person or entity (each a “User“) accessing or using the Site or the Services. Country-specific terms appearing at the end of this document may apply to you, depending on where you are located.
These terms and conditions, together with any and all other terms, conditions, rules, policies or procedures (“Additional Terms“) published on the Site from time to time and related to User’s use of the Site or the Services (including, without limitation, all country-specific terms attached hereto) (together, this “Agreement“), each as updated from time to time by SurveyMonkey, constitute a binding, legal agreement between SurveyMonkey and User.
By clicking “I Agree” (or any other button indicating your acceptance of this Agreement) you hereby agree to, and are bound by, this Agreement. If you do not agree with any of the terms of this Agreement, do not click such a button or otherwise access or use this Site or the Services or any information contained on this Site.
SurveyMonkey may make changes to the materials and services offered on this Site at any time. SurveyMonkey can change the terms of this Agreement (including any Additional Terms) at any time. If SurveyMonkey changes the terms of this Agreement, SurveyMonkey will post an updated set of terms and conditions of use on this Site and post a change notice and/or send registered users an email notice of the changes in advance of implementing the changes.
If any modification is unacceptable to you, you shall cease using this Site and the Services and be able to terminate your registration and/or subscription (if any). If you do not cease using this Site and the Services, you will be conclusively deemed to have accepted the change.
1. Legal Status
Each User hereby warrants that if it is a corporation or other legal entity, User is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement and, if an individual, User is of the age of majority in his or her place of residence.
2. Subscriptions and Payment
2.1. If User purchases a paid subscription to the Services (a “Subscription“), User shall pay all fees to SurveyMonkey Spain, Sucursal em Portugal, including for any additional Services purchased by User or usage that exceeds the thresholds at the rates posted, as well as VAT and any other applicable taxes, applicable to such Subscription, as published on the Site at https://www.surveymonkey.com/pricing/ from time to time. SurveyMonkey may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of User’s Subscription. SurveyMonkey will provide User with prior notice of any change in fees to allow User to cancel User’s Subscription prior to the end of the then-current term of User’s Subscription.
2.2. Subscription membership in the Services is on a continuous service basis. This means that, subject to the terms and conditions of this Agreement, SurveyMonkey shall automatically renew User’s Subscription at the end of its term unless User’s Subscription is canceled using the tool in User’s account page on the Site at any time prior to the end of the then-current Subscription. User will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription program (annual, quarterly, monthly, etc.) that User has chosen, unless SurveyMonkey has notified User of any new rate in advance. A cancellation of a Subscription requested by User through User’s account page will become effective on the date that the then-current Subscription period expires.
2.3. If User has elected to pay the fees referred to in Section 2.1 (Subscriptions and Payment) by credit card, User hereby warrants that the credit card information provided by User is correct, and User shall promptly notify SurveyMonkey of any changes to such credit card information. User acknowledges and agrees that if User’s credit card payment cannot be processed for any reason, SurveyMonkey may suspend or cancel User’s Subscription.
If User has registered for an account to use the Services, User hereby warrants that the information provided by User for the purposes of such registration is complete and accurate. User shall ensure that such information is kept up to date. Upon registering for an account, each User will receive a password and an account designation. User acknowledges and agrees that User, and not SurveyMonkey, is responsible for User’s account and all activities occurring in connection with the use of that account, whether or not User authorizes such activities.
4. SurveyMonkey Materials
Certain content and information provided on and through this Site and Services, including, without limitation, documents, graphics and images that are not User Content (as defined below) (collectively, the “SurveyMonkey Materials“) are provided to you by SurveyMonkey and are the copyrighted and/or trademarked work of SurveyMonkey or SurveyMonkey’s contributors. SurveyMonkey grants you a limited, personal, non-exclusive and non-transferable license to use and to display the SurveyMonkey Materials solely for your personal use in connection with the Site and Services.
Except as expressly permitted in this Agreement, you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the SurveyMonkey Materials in any manner. This limited license terminates automatically, without prior notice to you, if you breach any term of this Agreement. Except for the limited rights granted hereunder, you acknowledge that you have no right, title or interest in or to any SurveyMonkey Materials.
5. User Content
5.1. User acknowledges and agrees that:
(a) all survey questions, information, data, text, software, music, sound, photographs, images, video, survey responses, messages or other materials communicated, submitted or transmitted by User or respondents of User’s surveys through the Site or the Services (collectively, “User Content“), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated,
(b) User, and not SurveyMonkey, is responsible for all User Content that User or respondents of User’s surveys upload, post, email, distribute, communicate, transmit, or otherwise make available using the Services or that is otherwise made available through the use of User’s account (if User has one), whether or not authorized by User,
(c) by using the Site and the Services, User may be exposed to User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, and
(d) by communicating or transmitting any User Content using the Site or the Services, User grants to SurveyMonkey an irrevocable, non-exclusive, royalty-free and worldwide license to use such User Content for the purpose of operating the Site and supplying the Services, and User warrants to SurveyMonkey that it has the right to grant such license for such purposes.
5.2. User further acknowledges and agrees that SurveyMonkey does not control the User Content originating from User, respondents to User’s surveys or other users of the Site or the Services, and does not guarantee the accuracy, integrity or quality of such User Content. Notwithstanding the foregoing, SurveyMonkey may, but is not obligated to, review all User Content and block, modify, terminate access to, or remove any such User Content that SurveyMonkey, in its sole discretion, considers to be non-compliant with any of the requirements of this Agreement.
5.3. SurveyMonkey reserves the right to purge User Content from its databases at any time and from time to time without notice. User acknowledges and agrees that User is solely responsible for backing up any User Content uploaded to the Site by User or received by User through the use of the Services. SurveyMonkey shall not be liable for any purging, deletion or failure to retain any such User Content.
5.4. SurveyMonkey may disable User’s account and User’s access to use the Site and/or the Services and SurveyMonkey may recover from User any losses, damages, costs or expenses incurred by SurveyMonkey resulting from or arising out of User’s non-compliance with any provision of this Agreement.
6. User Conduct
In connection with User’s use of the Site and the Services, and without limiting any of User’s other obligations under this Agreement or applicable law, User:
(a) shall comply with: (i) this Agreement, including SurveyMonkey’s anti-spam policy and all other policies as published on the Site from time to time, (ii) all local and international laws applicable to User, including, among other things, the Privacy and Electronic Communications Regulations 2003 and all other laws related to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property, data protection, or child protective email address registries, (iii) all other rules or regulations applicable to User, including, among other things, securities regulations, and (iv) all privacy policies or similar policies or procedures to which User may be bound that are related to User’s use of the Services;
(b) shall not upload, post, email, distribute, communicate, transmit or otherwise make available any User Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that User does not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any similar form of solicitation;
(c) shall not use the Site or the Services to send surveys, polls, or other materials to individuals under the age of majority in his or her place of residence (“minors“) unless User is permitted to do so under all applicable laws, or to harm minors in any way, and shall not send surveys, polls, or other materials to minors that would subject SurveyMonkey to any local or international law, rule or regulation governing children’s privacy, rights of personality or otherwise related to protecting minors;
(d) shall not impersonate any other person or entity, including SurveyMonkey, or a SurveyMonkey official, forum leader, guide or host, or falsely state or otherwise misrepresent User’s affiliation with any other person or entity;
(e) shall, if User uses the Services to send a survey, not mislead the recipients of that survey that User may have the ability to associate individual responses to that survey with the individual email addresses to which that survey was sent by stating that User has no such ability (unless User has requested SurveyMonkey to disable such feature). SurveyMonkey recommends that Users’ surveys include the following notice (or words to similar effect), if applicable:
“Please be advised that your responses to this survey may not be treated as anonymous by the survey sender.”
(f) shall not interfere with or disrupt the Site or the Services or servers or networks connected to the Site or the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or the Services;
(g) shall not engage in excessive usage of the Site or the Services, as determined by SurveyMonkey in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Site, or disrupts the availability of the Site and the Services for other users;
(h) shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Site or the Services in any manner (except to the extent the foregoing prohibition is not permitted by applicable law, including, without limitation, as set forth with respect to Users in France in the attached country-specific terms);
(i) shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer, the Site, or the Services; and
(j) shall not upload survey links to message boards or newsgroups that are not relevant to the subject matter of the survey, or that prohibit such uploading without SurveyMonkey’s prior written consent.
User further acknowledges and agrees that SurveyMonkey may cooperate with any governmental authority in connection with any investigation into User’s use of the Site or the Services, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any User Content, and any other information pertaining to the User or to User’s use of the Site or the Services, to such governmental authority in connection with any such investigation.
7. Indemnity by User
User shall indemnify, defend and hold harmless SurveyMonkey, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including legal fees on a full indemnity basis) arising out of or in connection with:
(a) User’s use of the Site or the Services, including User’s use of or reliance on any information or materials (including survey or poll results or responses) obtained through the use of the Site or the Services,
(b) any other use of the Services by a third party using User’s account (whether or not authorized by User),
(c) User’s breach of this Agreement, including any of User’s representations and warranties under this Agreement, or
(d) User’s contravention of any law applicable to User, including, among other things, the Privacy and Electronic Communications Regulations 2003.
8.1. This Agreement shall automatically become effective upon User’s first use of the Site or the Services, and continue indefinitely until it is terminated.
8.2. SurveyMonkey may cancel User’s Subscription (if User has one) and automatically terminate this Agreement immediately by notice to User in the event that User breaches any of User’s representations, warranties, or obligations under this Agreement (including any of User’s obligations under Section 5 (User Content)) or contravenes any applicable law.
8.3. User may cancel User’s Subscription (if User has one) and terminate this Agreement by written notice to SurveyMonkey in the event that SurveyMonkey materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty days of SurveyMonkey’s receipt of notice of breach from such User.
8.4. Upon termination of this Agreement for any reason, User shall immediately cease all use of the Site and the Services, and User acknowledges and agrees that SurveyMonkey may, in its sole discretion, take any measures SurveyMonkey reasonably deems necessary or desirable to prevent further use by User of the Site or Services, including by blocking User’s IP address. User further acknowledges and agrees that upon termination of this Agreement, SurveyMonkey shall not be obliged to retain any User Content (including survey or poll results or responses) or to provide the same to User, but may elect to do so in its sole discretion.
8.5. Termination of this Agreement for breach as defined in Section 8.2 (Termination) above shall not entitle User to a refund of any unearned Subscription fees previously paid by User.
(a)all of User’s representations, warranties and indemnities given under this Agreement;
(b)all disclaimers of warranties, and limitations and exclusions of liability; and
(c) the last sentence of Section 4 (SurveyMonkey Materials), and each of Sections 5 (User Content), 7 (Indemnity by User), 8.4 (Termination), 8.5 (Termination), 8.6 (Termination), 10 (Limitations and Exclusions of SurveyMonkey’s Liability), 11 (Intellectual Property Rights), and 13 (General).
9. Provision of the Site and the Services
9.1. SurveyMonkey reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Services or any part thereof, or User’s access thereto, and to modify, suspend or delete the Site or any part thereof, and SurveyMonkey will use commercially reasonable efforts to provide reasonable advance notice of changes that significantly impact the Services in a negative manner. In the case of changes that significantly impact the Services in a negative manner, User is entitled to cancel User’s Subscription, if any. User acknowledges and agrees that SurveyMonkey shall not be liable to User, or to any third party, for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Site.
9.2. Without limiting Section 9.1 (Provision of the Site and the Services), if User engages in excessive usage of the Site or the Services (as described in Section 6(g) (User Conduct)), SurveyMonkey may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Site and the Services to other users, including by limiting or suspending User’s access to the Site and the Services, or by canceling User’s Subscription and terminating this Agreement.
9.3. USER ACKNOWLEDGES AND AGREES THAT THE SITE AND THE SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND THAT, EXCEPT AS MAY OTHERWISE BE SET FORTH IN THIS AGREEMENT WITH RESPECT TO USERS IN SPECIFIC COUNTRIES, SURVEYMONKEY HAS NO RESPONSIBILITY OR LIABILITY FOR THE LOSS OR DELETION OF, OR FAILURE TO RECEIVE, PROCESS, OR STORE ANY USER CONTENT (INCLUDING SURVEY OR POLL RESULTS OR RESPONSES) MAINTAINED OR TRANSMITTED USING THE SERVICES.
9.4. USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS.
9.5. USER FURTHER ACKNOWLEDGES AND AGREES THAT USER, AND NOT SURVEYMONKEY, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES.
9.6. SURVEYMONKEY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES, OR OTHER HARMFUL COMPONENTS OF THE SITE OR THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION, SOFTWARE, PRODUCTS AND SERVICES.
9.7. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SURVEYMONKEY, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
10. LIMITATIONS AND EXCLUSIONS OF SURVEYMONKEY’S LIABILITY
10.1. IN NO EVENT SHALL SURVEYMONKEY, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SURVEYMONKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:
(a) THE USE OR PERFORMANCE OF, THE DELAY IN PROVIDING, THE FAILURE TO PROVIDE, OR THE INABILITY TO USE, THE SITE OR THE SERVICES, OR
(b) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES.
USER SPECIFICALLY AGREES THAT SURVEYMONKEY, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR:
(c) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE OR THE SERVICES OR IN RELIANCE UPON ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES,
(d) ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OR
(e) ANY CONTENT SENT USING, OR INCLUDED IN, THE SITE OR THE SERVICES BY ANY THIRD PARTY.
IF USER IS DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES, USER’S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SITE AND THE SERVICES.
10.2. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, SURVEYMONKEY, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO USER FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SURVEYMONKEY’S (OR SUCH AFFILIATES’, DIRECTOR’S, OFFICER’S, EMPLOYEE’S, SERVANT’S OR AGENT’S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:
(a) THE AMOUNT OF ONE HUNDRED EUROS (€100.00), AND
(b) THE AMOUNTS ACTUALLY RECEIVED BY SURVEYMONKEY FROM USER UNDER THIS AGREEMENT.
10.3. USER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, SURVEYMONKEY WOULD NOT BE ABLE TO OFFER THE SITE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE USER’S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE. Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, damages to life, body or health or in case of bodily injury, death, fraud, gross negligence, or breach of a fundamental obligation, and so the foregoing limitation and exclusions do not apply to User to that extent (including, without limitation, as set forth with respect to Users in Germany in the attached country-specific terms).
11. Intellectual Property Rights
The Site and the Services and all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of SurveyMonkey.com, LLC Copyright © 2010, its affiliates, or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. SurveyMonkey reserves all rights in the Site and the Services that are not expressly granted. SurveyMonkey is a trademark of SurveyMonkey.com, LLC in the United States and of its affiliates in various other jurisdictions throughout the world. Other trademarks, names, and logos on this Site are the property of their respective owners. Nothing in this Agreement shall be deemed to assign or transfer to User any rights to any such intellectual property. User further acknowledges and agrees that SurveyMonkey Materials and other content made available to User through the Services may be subject to the intellectual property rights of third parties.
13.1. SurveyMonkey may provide references, frames or hyperlinks to internet websites maintained by third parties. SurveyMonkey does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. SurveyMonkey is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
13.2. User acknowledges and agrees that User, and not SurveyMonkey, is responsible for determining which laws may apply to User’s use of the Site and the Services and assessing User’s obligations under such laws.
13.3. All notices and other communications required or permitted to be given by SurveyMonkey to User under this Agreement will be deemed to be properly given on the date when:
(a) posted on the Site,
(b) sent by email to the email address for User last recorded by SurveyMonkey, or
(c) sent by postal mail to the postal address for User last recorded by SurveyMonkey.
User may give notices to SurveyMonkey under this Agreement by email to firstname.lastname@example.org.
13.4. This Agreement comprises the entire agreement between SurveyMonkey and the User relating to the Site and the Services. Both User and SurveyMonkey confirm that they have not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to this Agreement) unless that agreement, warranty, statement, representation, understanding or undertaking is expressly set out in this Agreement.
13.5. The use of the terms “includes” and “including”, and similar terms, shall be deemed not to limit what else might be included.
13.6. This Agreement shall be governed by the laws of Portugal. User may not assign this Agreement without SurveyMonkey’s prior written consent, which may be withheld in SurveyMonkey’s sole discretion.
13.7. SurveyMonkey may assign this Agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganization in which SurveyMonkey participates or to the purchaser of all or substantially all of SurveyMonkey’s assets to which this Site relates.
13.8. In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable legal fees and costs.
SURVEYMONKEY IS THE PUBLISHER OF THE SITE. THE HOST OF THE SITE IS INTERNAP NETWORK SERVICES CORP.
THE FOLLOWING TERMS AND CONDITIONS APPLY TO USERS LOCATED IN THE FOLLOWING LOCATIONS:
1. With respect to Users in the United Kingdom who are dealing as consumers (as defined by the U.K. Electronic Commerce Regulations 2002 and the Consumer Protection (Distance Selling) Regulations 2000) (“U.K. Consumers”), U.K. Consumers shall have the right to cancel this Agreement within seven (7) working days from the date of the day following the day the U.K. Consumer has entered into this Agreement by providing written notice of cancellation to SurveyMonkey. However, the U.K. Consumer will not be able to exercise this statutory right if the U.K. Consumer has already started using the Services provided under this Agreement, unless the U.K. Consumer and SurveyMonkey otherwise agree in writing.
2. With respect to Section 10 (Limitations and Exclusions of SurveyMonkey’s Liability):
NOTHING IN SECTIONS 10.1 AND 10.2 OF THE AGREEMENT SHALL LIMIT SURVEYMONKEY’S OR ITS AFFILIATES’ OR THEIR RESPECTIVE DIRECTORS’, OFFICERS’, EMPLOYEES’, SERVANTS’, OR AGENTS’ LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE (AS SUCH TERM IS DEFINED IN THE UNFAIR CONTRACT TERMS ACT 1977); (B) FRAUD; (C) MISREPRESENTATION AS TO A FUNDAMENTAL MATTER; OR (D) ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
1. With respect to Section 6 (User Conduct):
As a limited exception to Subsection (h) of Section 6 (User Conduct), Users in France shall be permitted to decompile software only as authorized by Section L.122-6-1 of the French Intellectual Property Code, i.e., if the decompilation is absolutely necessary in order to obtain the information required for the implementation of the interoperability of the licensed software with other software, and provided that all the following conditions are satisfied: (a) decompilation is performed by a person or entity expressly approved in writing by SurveyMonkey in advance of any decompilation operations, (b) the information necessary for the purpose of implementing interoperability has been requested in writing from SurveyMonkey but has not been made available to the User within a reasonable time period, (c) decompilation is limited to those portions of the software that is necessary to implement interoperability, and (d) the information obtained from the decompilation is used exclusively for the purpose of implementing software interoperability, is not communicated to any third party, except if third party involvement is necessary for purposes of software interoperability, is not used to create, produce, market or sell any software, the expression of which is substantially similar to the decompiled software, and is not used in the context of copyright or droit d’auteur infringement, in particular, any copyright or droit d’auteur on the decompiled software.
2. Section 8.2 (Termination) is replaced with the following: “SurveyMonkey may cancel User’s Subscription (if User has one) and automatically terminate this Agreement by right by reasonable prior notice to User in the event that User breaches any of User’s representations, warranties, or obligations under this Agreement (including any of User’s obligations under Section 5 (User Content)) or contravenes any applicable law.”
3. Section 8.3 (Termination) is replaced with the following: “User may cancel User’s Subscription (if User has one) and automatically terminate this Agreement by right by written notice to SurveyMonkey in the event that SurveyMonkey materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty days of SurveyMonkey’s receipt of notice of breach from such User.”
1. With respect to Section 10 (Limitations and Exclusions of SurveyMonkey’s Liability):
NOTHING IN SECTIONS 10.1 AND 10.2 OF THE AGREEMENT SHALL LIMIT SURVEYMONKEY’S OR ITS AFFILIATES’ OR THEIR RESPECTIVE DIRECTORS’, OFFICERS’, EMPLOYEES’, SERVANTS’, OR AGENTS’ LIABILITY FOR DAMAGES WHICH, FOR WHATEVER LEGAL REASON, WERE CAUSED BY: (A) GROSS NEGLIGENCE OR WILLFUL INTENT; (B) DAMAGES TO LIFE, BODY AND HEALTH; (C) THE ACCEPTANCE OF A GUARANTEE OR OF A PROCUREMENT RISK; OR (D) WHICH OTHERWISE MAY NOT BE EXCLUDED BY MANDATORY STATUTORY LAWS.
2. With respect to Users in Germany who are dealing as consumers (as defined under Section 13 of the German Civil Code) (“German Consumers”), THIS IS TO NOTIFY each German Consumer that, in accordance with applicable German statutory law, a German Consumer has the right to cancel this Agreement and to revoke his or her subscription (without specifying any reasons for revocation) within a period of two (2) weeks (“Limited Revocation Period”) from the Revocation Period Start Date (defined below) by providing written notice to SurveyMonkey. Each German Consumer acknowledges that it is receiving written notice (email or fax is sufficient) of the statutory revocation right on the date that the German Consumer clicks the button on the Site that indicates his or her acceptance of this Agreement and that receipt of this notice by email fulfills SurveyMonkey’s statutory notification obligations to properly inform each German Consumer of the statutory revocation right. “Revocation Period Start Date” means the later to occur of: (a) the date that the German Consumer receives this notice by email and (b) the date that SurveyMonkey first provides the German Consumer with access to the Services. A German Consumer’s dispatch to SurveyMonkey of a written revocation declaration within the Limited Revocation Period suffices to comply with the German Consumer’s statutory revocation right, regardless of whether the written revocation declaration is actually received by SurveyMonkey within the Limited Revocation Period.
Notwithstanding the foregoing, a German Consumer’s statutory revocation right will expire on the earlier to occur of: (i) the date that the obligations of each party under this Agreement have been fulfilled or (ii) the date on which the German Consumer provides to SurveyMonkey an explicit request to waive its statutory revocation right, regardless of whether the Limited Revocation Period has expired.
If a German Consumer effectively revokes this Agreement within the Limited Revocation Period, any performance received by one party will be returned to the other party, including any benefits derived from such performance, e.g., interest.
1. With respect to Section 6(a) and 7(d), the Act on Regulation of Transmission of Specified Electronic Mail of Japan (Act No. 26 of April 17, 2002) shall be included as an applicable law in addition to the Privacy and Electronic Communications Regulations 2003.
2. The first paragraph of SECTIONS 10.1 (preceding sub-paragraph (a)) (LIMITATIONS AND EXCLUSIONS OF SURVEYMONKEY’S LIABILITY) is replaced with the following:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SURVEYMONKEY, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SURVEYMONKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF: