Electric Paper Evaluationssysteme GmbH general terms and conditions for the use of the EvaSys SurveyGrid platform
- Application and object of the T&C
- All clauses that follow concern the EvaSys SurveyGrid platform, including the software and services connected to this (hereafter: "SurveyGrid" or "platform") provided by Electric Paper Evaluationssysteme GmbH (hereinafter EP) via various internet domains (including www.surveygrid.com).
- The range of services available via SurveyGrid is not aimed at users or consumers but exclusively at businesses with their registered seat in European Union states or in Switzerland (except for Belgium, France, Hungary, Irland, Luxembourg, Netherlands, Spain, Sweden and UK), and at entities or separate estates under public law that are based in these countries, that wish to use the range of services available on the platform and that enter into contractual relationships with EP ("customers"). The terms "businesses" and "public institutions" (e.g. associations, schools) represent all entities under private and public law. The term "individual" represents all natural persons.
- These clauses define the conditions under which customers may use the platform. Use of the platform by all customers is governed by these general terms and conditions ("T&C") alone.
- Different licence terms or the customer's general terms and conditions will not become subject of the contract even where EP does not expressly contradict them or where EP renders contractual services to the customer without reservation in the knowledge of opposing or differing conditions of the customer.
- The EP data protection policy valid at any given time also applies. In case of doubt, the T&C take precedence.
- Those who are 18 years or younger or those who wish to use the range of services available on the platform for private use may not register with EP and may not use the SurveyGrid platform.
- Description of the SurveyGrid platform, right of use
The SurveyGrid platform operated by EP is a web-based survey tool - an SAAS (software as a service) product. EP uses the platform to provide data processing centre services carried out within the EU, in addition to providing access to software that is continuously updated. The customer may lease access to the platform for the duration offered and specified on the website www.surveygrid.com, in order to carry out surveys on paper, online or both.
The content and distribution of surveys and the implementation of the response to these do not form part of the spectrum of services from EP. Rather than providing the content of or ensuring the implementation of a successful survey, EP services instead entail facilitating access to the SurveyGrid platform and to communications therein, according to the specifications arising from these T&C.
- Once the customer has completed the registration process and subsequently been granted access to SurveyGrid, they are granted the non-transferable and non-exclusive right to use the platform themselves via EP internet portals for their own purposes only in accordance with these T&C. Any use of SurveyGrid software not in accordance with this requires express, separate written approval in advance from EP. This applies in particular to the reproduction, as well as the allocation or provision of SurveyGrid or EP software, or parts of it at a time, to third parties for free or in return for payment , even when this is carried out on computers in possession of the user.
- The customer is given unique identification codes in order for them to access the SurveyGrid platform; they are responsible for the non-disclosure of these codes and for making sure they are not subject to misuse. In addition to this, they must also ensure that all their authorised users also maintain this obligation. If the customer becomes aware of cases of misuse, EP must be informed of this immediately. In cases of misuse, EP is entitled to block access to the SurveyGrid platform. The customer is liable for any misuse for which they are held responsible.
- An internet connection to facilitate use of the SurveyGrid platform is to be arranged by the customer at their own expense. They also bear the cost of any devices and telecommunications charges necessary for this.
- The customer is also responsible for making sure that all technical requirements are in place for accessing the online services and for using the SurveyGrid platform. Where necessary, EP can provide the customer with information on technical requirements.
- Availability, backup of data and support
- EP will make every effort to ensure the availability of software provided via SurveyGrid 24 hours a day, 7 days a week and to ensure the server is available as much as possible. Nevertheless, EP would like to expressly point out that 100% availability cannot be guaranteed due, among other reasons, to maintenance work. In particular, EP is not responsible for down times due to technical problems or other problems that lie outside the influence of EP (acts of nature, third party faults, etc.). As the technology currently stands, program faults cannot be ruled out even when the greatest of care is taken.
- In case of fault or disruption, EP will immediately take all appropriate measures to restore availability as quickly as possible.
- Disruptions not caused by EP and disruptions caused by maintenance work etc. do not constitute grounds for the customer's right of termination nor for damage claims from the customer.
- EP backs up data as follows: once a day. Failure to back up data due to viruses or hacker attacks or other circumstances not caused by the gross negligence of or deliberately caused by EP do not constitute grounds for claims by the customer against EP.
- Personal Support is available to the customer once they enter into a contract with EP. An overview of the support included in each type of service is available at www.surveygrid.com. The personal service is available to the customer from Mondays to Thursdays between 9am and 6pm and Fridays between 9am and 4pm, except on public holidays in Lower Saxony, Germany.
- Description of different services and conclusion of contract
- The scope of services is determined by the validity period of SurveyGrid account selected by the customer with the chargeable services included therein at time of registration. The list of accounts available can be found at www.surveygrid.com.
- EP has the right to change, in particular to extend and reconfigure the scope of service functionality offered, at any time and at their own discretion. These changes do not constitute grounds for termination. Customers will be informed of significant changes by email.
- The range of services offered online by EP are fundamentally subject to alteration and are non-binding, except when expressly designated as binding by EP.
- The customer must register with SurveyGrid in order to use these services. EP reserves the right to decline concluding a contract in individual cases.
- The customer will receive an order confirmation by email once their online order is complete. Receipt of this email represents conclusion of the contract between the customer and EP.
- Once confirmation has been sent by EP, the customer is able to use the service straight away provided they have paid by credit card or chosen bank transfer on invoice as their payment method. Insofar as no charges are expected for the service chosen by the customer (SurveyGrid Student), the customer is able to use the service in full according to the service description upon receipt of confirmation from EP.
- Upon expiration of the contract, the customer account will be retained on SurveyGrid whilst access to the survey tool itself will be blocked. The customer is able to re-register with SurveyGrid at any time and conclude a new contract. Survey data, questionnaires or other information from earlier use will however not be made available again by EP in these cases.
- Duration and termination of the contract, and amendment of the T&C
The duration of the contract depends on the configuration of services offered by EP via SurveyGrid and on the agreements reached regarding these.
When the customer is granted access to SurveyGrid, the minimum duration of a concluded contract is always 3 months except if expressedly agreed otherwise. A contract is extended by 3 months at a time. A minimum duration of 6 or 12 months can also be arranged. Where the minimum duration is six months, the contract is extended by 6 months; where the minimum duration is twelve months, the contract is extended by 12 months.
A contract is not extended once one of the contractual parties terminates the contract in writing whilst complying with the following notice periods:
- 1 month before expiration of contract with a minimum duration of 3 months;
- 2 months before expiration of contract with a minimum duration of 6 months;
- 3 months before expiration of contract with a minimum duration of 12 months.
As long as neither contractual party terminates the contract within the notice period applicable to their contract, the corresponding contract duration will always be extended by the time period stated in paragraph 1.
The right of both parties to terminate without notice on solid grounds remains unaffected.
For EP, solid grounds constitute cases where the customer grossly and/or lastingly contravenes their contractual duties, for example by being in default of payment of fees by more than 14 days.
- When the customer is granted access to SurveyGrid, the minimum duration of a concluded contract is always 3 months except if expressedly agreed otherwise. A contract is extended by 3 months at a time. A minimum duration of 6 or 12 months can also be arranged. Where the minimum duration is six months, the contract is extended by 6 months; where the minimum duration is twelve months, the contract is extended by 12 months.
- Should the customer continue to use SurveyGrid after expiration of the contract, § 545 of the German Civil Code (BGB) is excluded.
- EP is entitled to amend the description of services or the T&C. However, EP will only amend the T&C for good reason, in particular when new technological developments, changes in the law or other equivalent reasons justify this. Changes that significantly affect the contractual equilibrium between parties must be avoided. Unilateral changes to which EP is subsequently not entitled require the agreement of the customer.
- EP is entitled to align individual prices to changing market conditions; this applies for significant changes in procurement costs, changes in VAT or in purchase prices. Price alignments are permitted once per quarter at the most. Price increases that significantly exceed the regular increase in living costs constitute a right of termination for the customer. EP will inform the customer of this before a price increase.
- Prices, credits
- The prices of services provided by EP are determined by the list of tariffs current at any one time and which is available to view at www.surveygrid.com. These prices form part of the agreement made once the contract is concluded.
- The customer can buy credits and use these to purchase specific services provided by EP. Credits must be used within the time period of the contract and will lapse upon expiration of the contract. Should the customer extend the contract, this then also applies to the use of credits, as long as the customer has first paid the amount agreed for the continuation of the contract.
- Prices do not include VAT unless otherwise stipulated.
- Any price changes will be communicated to the customer. The contract continues to apply under the changed conditions from the end of the month following the communication.
- Terms of payment, offsetting
- Charges will be invoiced to the customer according to contractually specified conditions for each specific product or for the purchase of credits. Insofar as no other method of payment is agreed upon, EP will issue the invoice as soon as EP has received the online order from the customer. The invoice amount is payable once the invoice is issued. Payments are to be made in full to the account specified on the invoice. In cases of payment arrears, EP is entitled to block purchases of other services. In addition, interest will be charged on any debts while arrears are ongoing, according to § 288, paragraph 2 of the German Civil Code (BGB).
The customer may use one of the following payment methods as soon as the order has been placed:
- credit card
- payment on invoice (this payment method is only available to customers in Germany, Austria and Switzerland)
- Whenever a contract regulating the use of SurveyGrid is extended, the customer will be issued with an advance invoice for the extension period that is payable immediately. Pursuant to this, authorisation for charges to a credit card also applies to such contract extensions.
- The customer can only offset those claims that are undisputed or determined without further legal recourse.
- Removal of questionnaires, survey results, etc.
- The customer is able to delete their questionnaires and survey results at any time by using the access to SurveyGrid provided to them by EP.
- EP is entitled to remove all data uploaded by the customer including questionnaires, survey participants and survey results, irreversibly and without prior notice, one day after the contract expires.
- Intellectual property rights, legality of content uploaded by the user
- The content of SurveyGrid may be protected by intellectual property rights or data protection laws.
- The customer carries sole legal responsibility, in particular responsibility in terms of press and competition law and other responsibilities including the German General Act on Equal Treatment (AGG), for content uploaded by the customer and intended for publication. All documents, information and data uploaded by the customer must be lawful (e.g. according to laws protecting children and young people) and free from third-party rights (intellectual property rights, neighbouring rights, trademark rights, personality rights and other rights).
- Obligations of the customer
- The user carries sole responsibility for the content of a survey or communication. Users are not permitted to store content that incites hatred of certain populations, is dehumanising, discriminatory, racist, pornographic, indecent or any other illegal content.
- Each customer carries sole responsibility for communication conducted between users in the context of SurveyGrid. EP is not accountable for statements made and actions taken by the customer or survey participants. The customer indemnifies EP and all members of EP staff against all third party claims arising from any infringement of rights due to content, or part thereof, published online by the customer or given to EP for publishing. This includes in particular the obligation to free or indemnify EP and/or EP staff in this respect from damages or reimbursement claims made by third parties as well as from all costs arising from prosecution (e.g. legal expenses and lawyers' fees).
- All customers are obliged to treat emails, other communications or other data from survey participants, received in the context of SurveyGrid, as confidential and not to make these available to third parties without the agreement of their authors.
- The customer is not permitted to grant access to their user account to third parties and must protect their personal password and access data accordingly.
- The customer must change their password regularly for security reasons. Passwords can be changed online. Should the customer suspect that third parties are aware of the password, this must then be changed immediately.
- Where sufficient suspicion is raised that the customer's access is being used without authorisation, EP is able to block the customer's access to the service until the suspicion is disproved. In this case, the customer will be informed immediately of the block and will be granted the option from EP of defining new access data as soon as the matter is resolved.
- Since even data backups conducted with all due care (see above, Fig. 3.4) can lead to loss of data, it rests on the customer to keep available an up-to-date backup of all their content on the platform (for example, information passed on to third parties via SurveyGrid), in particular of survey results and questionnaires, to ensure as complete a reconstruction as possible of the data stock with the least possible effort in case of system failure.
- Any improper use or application of SurveyGrid is prohibited. Expressly forbidden are the collection and storage of data from the databases as well as the full, partial or use in extracts of these data online for commercial utilisation of addresses or as a template or aid for compiling or expanding address books, lists of participants or other lists as well as uploading the databases online for the aforementioned purposes or for other commercial purposes.
- The customer is not permitted to use mechanisms, software or scripts in the context of using SurveyGrid, nor are they permitted to carry out any blocking, overwriting, modifying or copying. The customer may however use the interfaces or software made available to them within the scope of SurveyGrid.
- In addition, the customer must desist from any action likely to compromise the functioning of the SurveyGrid infrastructure in particular when likely to overload it.
- Customer default
If the customer is more than 14 days in arrears with their payments, EP is entitled to
- block the account at the customer's expense;
- terminate the contract without notice (see above, Fig. 5.1.3.).
- EP reserves the right to claim damages due to defaulted payment by the customer.
- Limitations of liability
The following regulations concerning EP's limitation of liability apply to all claims for damages and cases of liability irrespective of the legal basis underpinning them (e.g. defaulted payment, impossibility of performance, breach of contract, impediment to performance, civil offence, etc.) except for:
- user claims arising from damages occurring through injury to life, limb or health,
- user rights and claims arising from fraudulent concealment of a fault by EP or due to the absence of conditions for which EP had provided a guarantee,
- user claims or rights based on deliberate conduct or gross negligence of EP itself, its legal representatives or vicarious agents, as well as
- user claims according to product liability law. Statutory laws apply for all the aforementioned exceptions.
- Where damage is caused merely through negligence, EP is liable only where significant duties (cardinal duties) have been violated. Cardinal duties constitute contractual obligations, the fulfilment of which ensures the actual due performance of a contract, and on the adherence to which each contractual party may rely. In cases where cardinal duties are violated, EP's liability is limited to recovering typical damages that are foreseeable by EP upon conclusion of contract. This usually consists of once again providing the customer with the services in question, free of charge. In other respects, the liability of EP remains excluded where damage is caused by slight negligence or merely by negligence.
- The no-fault liability of EP is excluded in the area of contractual relationships in terms of tenancy law and similar for faults existing at conclusion of contract.
- If and insofar as the liability of EP is excluded, this also applies for the personal liability of EP staff, employees, personnel, representatives and vicarious agents.
- Choice of law, jurisdiction
- The contract between EP and the customer, including its conclusion as well as all rights and obligations arising from it, is governed by German law exclusively, to the exclusion of the UN Convention on Contracts on the International Sale of Goods (CISG).
- The Lüneburg courts have exclusive jurisdiction over all disputes arising from and in the context of this contract, including its conclusion and validity. It is expressly agreed that the customer will submit to the venue of the Lüneburg district court or regional court.
- Other clauses
- EP is entitled, but not obliged, to check and, where necessary and required, change or delete the content of any text as well as any diagram or illustration against the guidelines underpinning these clauses.
- Should a clause in these T&C be void or disputable, all remaining clauses remain unaffected.