Introduction

Thank you for using eSurvey Creator. eSurvey Creator is a service provided by Zurich-based company enuvo GmbH, later referred to as "eSurvey Creator", "enuvo", "we", "our" and similar.

These Terms of Use ("TOU") contain the terms and conditions under which enuvo and its affiliates provide their services to you and describe how the services may be accessed and used.

We refer to the combination of these TOU and any applicable Additional Terms such as our Privacy Policy and Anti-Spam Policy collectively as these "Terms".

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.

Fees and Payments

Fees for Services

You agree to pay to enuvo any fees for each service you purchase or use, 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 the payment process in your account.

Taxes

Unless otherwise stated, you are responsible for any taxes or duties associated with the sale of the Services, including any related penalties or interest (collectively "Taxes"). You will pay enuvo for the Services without any reduction for Taxes. If enuvo is obliged to collect or pay Taxes, the Taxes will be invoiced to you.

Price Changes

enuvo may change the fees charged 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. enuvo will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.

Right of Withdrawal

If you are a consumer, starting from the date your paid 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 customer must notify enuvo in writing (email, letter, etc.) within the specified period. It is up to the consumer to prove that their notification was sent and received within deadline. The cost of reimbursement as well as a proportionate handling fee may be charged to the customer.

You are considered to have benefited from or started to use the Services if, starting from the moment of your paid upgrade, at least one survey has collected at least one new answer (meaning that you have shared your survey and collected new answers) or if you have used your newly acquired privileges to process or export your collected responses.

Privacy

Privacy

When using our Services, you may submit content such as your personal data, personal data of others, as well as many different types of content.

We understand that by using our Services, you are trusting us to treat your content appropriately. The protection and confidentiality of your data has always been very important to us. We have and will never sell your data to third parties.

Please review our full Privacy Policy to learn more about how we protect your data: Privacy Policy

Confidentiality

We will treat your Content as confidential information and only use and disclose it in accordance with these Terms.

However, we may disclose your Content when required by law or legal process, but only after enuvo, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.

Security

We will store and process your Content in a manner consistent with industry security standards. enuvo 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.

At reasonable intervals, enuvo tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.

General Data Protection Regulation (GDPR)

Processing Instruction

By requesting the Services and agreeing to these Terms, you are providing us with instructions to process any personal data collected by you through the Service, on your behalf.

Customer Obligations

You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to enuvo so that enuvo 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 enuvo in the provision of the Services.

enuvo Obligations

Where enuvo is processing personal data on your behalf, it will:

  1. 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 enuvo privacy policies constitute such documented instructions;
  2. ensure that all enuvo personnel involved in the processing of personal data have committed themselves to confidentiality;
  3. 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 enuvo and is not otherwise available to you through your account and user areas or on enuvo websites, provided that you provide enuvo with at least 14 days’ written notice of such an information request;
  4. promptly notify you of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Services; and
  5. 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.

Sub-processors

enuvo uses trusted partners in facilitating certain elements of our Services ("sub-processors"). By agreeing to these Terms, you provide a general authorization to enuvo to engage onward sub-processors, subject to compliance with the requirements set out here.

Liability

enuvo will be liable for the acts and omissions of its sub-processors to the same extent enuvo 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 enuvo 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.

Security Incident

If enuvo becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data ("Security Incident"), enuvo will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. enuvo 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 enuvo.

Your Content

You Retain Ownership of Your Content

You retain ownership of all of your intellectual property rights in your Content. enuvo 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.

Reference Customers

We may identify you (by name and logo) as a customer on our website and on other promotional materials.

User Content

User Content

The Services display content provided by others that is not owned by enuvo. 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. enuvo is not responsible for any actions you take with respect to your Content, including sharing it publicly. 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.

Content Review

You acknowledge that, in order to ensure compliance with legal obligations, enuvo 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. However, enuvo otherwise has no obligation to monitor or review any content submitted to the Services.

Account Management

Keep Your Password Secure

You are responsible for safeguarding your password and any other credentials used to access your personal enuvo account. You are responsible for any activity occurring in your account, whether you authorized that activity or not. If you become aware of any unauthorized access to your account, you should notify us immediately. Accounts may not be shared and may only be used by one individual per account.

Keep Your Details Accurate

enuvo 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. Accounts are controlled by the entity whose email address is registered with the account.

Remember to Backup

You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, enuvo will not be liable for any failure to store, for loss of or corruption of your Content.

User Requirements

Legal Status

If you are an individual, you may only use the Services if you have the power to form a contract with enuvo. 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.

Legal Compliance

You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.

Your Responsibilities

You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:

  1. You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
  2. You may not misuse our Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions that we provide.
  3. You may not circumvent or attempt to circumvent any limitations that enuvo imposes on your account (such as by opening up a new account to conduct a survey that we have closed for a Terms violation).
  4. Unless authorized by enuvo in writing, you may not probe, scan, or test the vulnerability of any enuvo system or network.
  5. Unless authorized by enuvo in writing, you may not use any manual or automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.
  6. Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
  7. You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
  8. You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. enuvo will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to enuvo.
  9. You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
  10. Unless authorized by enuvo in writing, you may not resell or lease the Services.
  11. You may not register accounts by "bots" or other automated methods.

Suspension and Termination of Services

By You

You can terminate your account at any time from within your enuvo account. Such termination 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 any running 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 for any period of time you did not use in that billing cycle 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; or (b) a refund is required by law.

By enuvo

enuvo may limit, suspend, or terminate the Services to you:

  1. if you fail to comply with these Terms
  2. if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services
  3. if we are investigating suspected misconduct by you
  4. if we receive an illegitimate chargeback request from a payment provider for Services we have already delivered to you

Also, if we limit, suspend, or terminate the Services you receive, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from that Service. However, there may be time sensitive situations where enuvo may decide that we need to take immediate action without notice. enuvo 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. enuvo has no obligation to retain your Content upon termination of the applicable Service.

Further Measures

If enuvo stops providing the Services to you because you repeatedly or egregiously breach these Terms, enuvo may take measures to prevent the further use of the Services by you, including blocking your IP address.

Changes and Updates

Changes to Terms

enuvo 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 enuvo website. If an amendment is material, as determined in enuvo’s sole discretion, enuvo will notify you by email. Notice of amendments may also be posted to enuvo’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. For certain changes to become effective, applicable law may require enuvo 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.

Changes to Services

enuvo constantly changes and improves the Services. enuvo may add, alter, or remove functionality from a Service at any time without prior notice. enuvo may also limit, suspend, or discontinue a Service at its discretion. If enuvo discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. enuvo may remove content from the Services 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.

Downgrades

Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account.

Disclaimers and Limitations of Liability

Disclaimers

While it is in enuvo’s interest to provide you with a great experience when using the Services, 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 ARE PROVIDED "AS IS" AND ENUVO 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.

Exclusion of Certain Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, ENUVO, 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 ENUVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF ENUVO, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO ENUVO FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

Consumers

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.

Businesses

If you are a business, you will indemnify and hold harmless enuvo and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) 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.

Contracting Entity

Who you are contracting with

Unless otherwise specified in relation to a particular service, the Services are provided by, and you are contracting with, enuvo GmbH, Switzerland.

enuvo GmbH

For any Service provided by enuvo GmbH, the following provisions will apply to any terms governing that Service:

Other Terms

Entire Agreement

These Terms (including the Additional Terms) constitute the entire agreement between you and enuvo, 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.

Interpretation

The use of the terms "includes", "including", "such as", and similar terms, will be deemed not to limit what else might be included.

No Waiver

A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.

Precedence

To the extent any conflict exists, the Additional Terms prevail over this TOU with respect to the Services to which the Additional Terms apply.

Severability

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.

 

Zurich, 24.05.2018