General terms and conditions for the service “QUESTIONSTAR”
Motaev Marx Motaev GbR (hereinafter referred to as “MMM”) provides its customers with an internet-based online service “QUESTIONSTAR” (hereinafter referred to as “Service”) via its website, on the basis of which customers can create online questionnaires and carry out web-based online surveys. The following terms and conditions govern the use of the Service by the end customer (hereinafter referred to as “Customer”).
§1. Scope of the Terms and Conditions
(1) The General Terms and Conditions apply to all services provided by MMM (whether paid or not and regardless of their scope) in relation to the use of the MMM service.
(2) The General Terms and Conditions in their respectively valid version shall apply. If the customer is not a consumer according to § 13 BGB (German Civil Code), then these GTC also apply to all contracts concluded between MMM and the customer for the provision of services. They also apply to all future business relations, even if they are not expressly agreed again. The customer is obliged to inform himself about the current general terms and conditions before each order or contract extension. The AGB are to be seen in the Internet under ‘https://www.QUESTIONSTAR.com/terms-of-service‘ at any time.
(3) Deviating agreements between MMM and the customer as well as mandatory legal regulations have priority.
(4) The General Terms and Conditions apply exclusively. Deviating terms and conditions of the customer are not valid.
(5) General terms and conditions of the client do not become part of the contract unless MMM agrees to them in individual cases. Counter-confirmations of the customer with reference to their general terms and conditions are hereby contradicted.
(6) All changes and amendments to contractual agreements must be recorded in writing for verification purposes. Reports which must be made in writing may also be made by e-mail.
(7) MMM reserves the right to unilaterally amend the GTC for the future. The amended GTC become part of the contract if cumulative:
– MMM notifies the customer of the change, whereby an e-mail message to the last known e-mail address according to the customer’s details or the e-mail address stored by him in the customer profile is sufficient,
– the customer can take note of the new GTC in a reasonable way, whereby a download possibility on the MMM internet pages is sufficient, and
– the customer does not object to the inclusion of the new GTC within 14 days of receipt of the notification of change, whereby the legal consequences of the omitted objection must be pointed out in the announcement.
§2. Scope of service
(1) The scope of services results from the tariff selected by the customer with the conditions valid at the time of registration. The list of valid tariffs is available at any time at ‘https://www.QUESTIONSTAR.com/plans-and-pricing‘.
(2) MMM is entitled to change the scope of the offered functionality of the service at any time at its own discretion, in particular to extend and redesign it. These changes do not constitute grounds for termination. The customer will be informed by e-mail about essential changes.
(3) MMM reserves the right to provide the standard layout templates made available to the customer within the service with his own advertising or with other attributes of the service and/or MMM. The client is entitled to remove these advertisements or attributes at any time independently and without prior agreement with MMM or to replace them with his own advertisements or with the advertisements of third parties, insofar as this is legally permissible and in particular not misleading, as well as to create his own layout template without advertisements and attributes of the Service and/or MMM.
§3. Offer, conclusion and duration of the contract
(1) MMM’s offers, in particular those presented on the Internet, are generally subject to confirmation and non-binding, unless MMM expressly designates them as binding. Contracts shall only become binding upon written confirmation by MMM.
(2) By registering completely and truthfully on the website of the service or by sending the registration form to MMM, the client submits his offer. The client will then receive an electronic confirmation from MMM. Upon receipt of this confirmation, the contract for the use of the Service is concluded in accordance with these Terms and Conditions.
(3) After receipt of the confirmation, the client can use the service immediately. However, the evaluation options of the service remain limited to 15 test persons until receipt of payment. Upon receipt of payment, the customer has full access to all collected data. If the customer has registered for a free tariff, the evaluation options remain limited to 15 test persons until this tariff expires.
(4) MMM can make the conclusion of the contract dependent on the presentation of a written power of attorney, an advance payment, a guarantee declaration of a bank or other information or confirmations. MMM reserves the right to refuse the conclusion of a contract in individual cases without giving reasons.
(5) The contract is concluded for the period of time specified by the client and ends at the end of this period without any notice being required.
(6) The contract is extended if the customer declares an extension of the contract to MMM before the expiration of the contract period or within 30 days after its expiration. In this case, the client has to pay the usage fee for the new usage period.
§4. Prices, price changes, terms of payment
(1) For the use of the service the customer has to pay a usage fee.
(2) The amount of the usage fee is determined according to the tariff selected by the customer and according to the service and price lists separately determined by MMM. The amount of the usage fee does not depend on how many surveys the client conducts in total within the framework of his chosen tariff, nor on how many respondents the client interviews per survey or in total. Rather, the usage fee is to be understood as a flat-rate price for the temporary use of a tariff.
(3) After registration or registration of the customer with the service, MMM will issue an invoice to the customer and send it by post or electronically. The invoices are due for payment immediately and without deduction, unless a different payment period has been agreed.
(4) All bank charges shall be borne by the customer.
(5) If the customer defaults on payment despite a reminder, MMM is entitled to choose at its discretion,
– the interest on arrears. These amount to 5% p.a. above the base rate (§247 BGB) for contracts with consumers (within the meaning of §13 BGB) and to 8% p.a. above the base rate for contracts with entrepreneurs (within the meaning of §14 BGB);
– to block the user account at the customer’s expense, whereby in this case the customer is nevertheless obliged to pay the user fee;
– to terminate the contract without notice.
MMM reserves the right to assert further claims due to delayed payment.
(6) The price at which the contract is concluded remains valid for the duration of one usage period and does not change for the client during this period. MMM reserves the right to change the tariff prices at its own discretion at any time. If the contract is extended, the previously agreed price loses its validity. The contract will then be renewed at the price valid for the tariff at the time of renewal.
(7) All agreed prices are fixed prices. A refund to the customer is excluded even if the quantity falls significantly short of the quantity provided for in the chosen tariff.
(8) Excluded from points (1) to (7) are contracts for which no usage fee is provided.
§5. Obligations of the customer
(1) The customer is obliged to use the service only in accordance with these terms and conditions.
(2) The customer must constantly update and disclose the contract-relevant information (e.g. address) created in his user account. For this purpose, the customer has access to the corresponding configuration menu in his user account. The customer is obliged to act exclusively on his own account.
(3) The customer is solely responsible for the content of the content published by him on the Internet or MMM for publication, or parts thereof. The customer undertakes to observe the laws applicable in Germany and worldwide for the protection of children and adolescents as well as authors and for the protection against terrorism and violence. The customer is responsible for compliance with the provisions applicable in Germany for electronic business transactions (e.g. Teleservices Act).
(4) The customer undertakes in particular to observe the data protection provisions and regulations of the DSGVO and to ensure that
– the respondents are sufficiently well informed about the purpose of the survey;
– the completion of questionnaires is at the sole discretion of the respondents and is not detrimental to them;
– Personal information about respondents will not be shared with or compromised by third parties;
– the personal data of the respondents are not stored longer than necessary and are only used for the purpose intended by the survey;
– other rights to protect the personality of the respondents are observed.
(5) The client indemnifies MMM from all claims of third parties due to the violation of rights due to the content or parts thereof published by the client on the Internet or handed over to MMM for publication. This includes in particular the obligation to indemnify or hold MMM harmless from any claims for damages or reimbursement of expenses by third parties as well as from all costs of legal proceedings (e.g. court and attorney fees).
(6) The customer must ensure that the passwords transmitted to him are not accessed by unauthorised third parties. The loss or disclosure of passwords must be reported immediately to MMM so that misuse can be prevented. The client shall reimburse MMM for any expenses incurred by MMM as a result.
(7) If there is sufficient suspicion that the client’s access has been used without authorization by a third party, MMM can block the client’s access to the service until the suspicion is invalidated. In this case, the client will be informed immediately about the blocking and will receive new access data from MMM as soon as the incident has been clarified.
(8) The customer ensures that third parties use the service responsibly in accordance with the authorised use of the service. The customer is liable for all damages caused to him by authorized or unauthorized use by third parties within the scope of the access and usage possibilities provided by MMM.
(9) The client commits himself,
– MMM shall immediately notify MMM of any material defects or damage in connection with the Service (errors) and take all measures to identify the errors and their causes or to facilitate or accelerate the elimination of the errors;
– MMM to replace this by checking its technical equipment and/or the program code of the Service if and to the extent that after checking a reported error it turns out that its cause was the responsibility of the Client.
(10) If the customer plans a survey in which the service is to be excessively used or notices during the execution of the survey that the service is excessively used, he must immediately inform MMM thereof. If the notification of the planned excessive use is not made 14 days before the survey is started, the customer’s claim to a faultless functioning of the service shall lapse. As a rule, an excessive claim exists if more than 1,000 questionnaires are called up per day. In case of excessive use MMM reserves the right to obtain an additional fee. This amounts to 0.10 Euro per each questionnaire called up, which is above the set limit of 1,000 questionnaires per day.
(11) If the client violates his obligations, MMM has the right to block the client’s user account at his expense, as well as the right to terminate the contract without notice. MMM reserves the right to delete the client and his data immediately in the event of false information during registration or misuse of the service.
§6. Secrecy, privacy, storage
(1) According to DSGVO MMM points out that personal data are stored. This data may, if necessary and unless the customer expressly objects, be passed on to third parties solely for the purpose of processing the contract. The customer can obtain information about the type, scope and purpose of the collection and use of personal data by MMM at any time under www.QUESTIONSTAR.com/privacy-policy.
(2) MMM undertakes not to use the data collected during the surveys or the survey results of the customer in any way or to make them available to third parties.
(3) Points (1) and (2) only do not apply to the extent that MMM is legally obliged to disclose such data to third parties, in particular government agencies, for example for criminal prosecution.
(4) The customer agrees that he or the company may be named as a reference customer by MMM in written and electronic form two weeks after conclusion of the contract. In the reference list, MMM may – in the case of private individuals – use the name and first letter of the surname of the client – and in the case of legal entities – the company name and the link to the client’s Internet presence. Other personal information of the Customer may only be used as a reference with the Customer’s express permission.
§7. Warranty and availability of the service
(1) MMM ensures an availability of its service of 98% on an annual average. This does not apply to times when the web server cannot be reached via the Internet due to technical or other problems beyond the control of MMM, e.g. force majeure, fault of third parties, etc.
– In case of attacks (e.g. DDOS), MMM may discontinue the service for the duration of the attack.
(3) The customer is aware that it is not possible according to the state of the art to create software that is completely free of errors for all areas of application. If reproducible errors occur during the use of the service, the client shall immediately inform MMM thereof and describe the error and its manifestation in such detail in a written error report or notice of defect that an examination of the error (e.g. submission of the error messages) is feasible and the exclusion of an operating error (e.g. specification of the work steps) is possible. MMM will remedy this error within a reasonable time after MMM has received the written error report.
(4) If MMM is not in a position to rectify the defect or if MMM is not entitled to refuse rectification according to § 439 Abs (3) BGB (German Civil Code) or if the rectification is delayed beyond a reasonable period for which MMM is responsible or if the rectification fails twice, the customer is entitled to withdraw from the contract or to demand a corresponding reduction of the purchase price.
(5) MMM’s obligation to eliminate errors shall not apply if the error is not reproducible or cannot be shown by means of machine-generated output. The warranty is also void if the error or its cause is outside the area of responsibility of MMM. Minor defects, which do not or only insignificantly impair the contractual use of the service, do not entitle the client to reduce the remuneration or to withdraw from the contract, nor do such defects lead to MMM’s obligation to eliminate the defect or to rectify the defect.
(6) In the event of a claim against MMM under warranty or liability, contributory negligence on the part of the user shall be taken into account appropriately, in particular in the event of insufficient error messages or insufficient data backup.
(7) If MMM is obstructed in its services to be rendered continuously for a continuous period of at least 2 weeks, MMM warrants that the client is entitled to use the service free of charge for a corresponding period over the contractual duration.
§8. Customer support
(1) The support services of MMM are not subject of this contract. However, MMM provides free customer support for its customers. MMM is entitled to terminate the provided support at any time, unless the client has concluded a separate written support contract with MMM for the service.
(2) MMM does not offer any support with regard to third-party software used in connection with the Service. In order to obtain support for this software, please contact the respective software manufacturer.
§9. Data backup, deletion of questionnaires, user accounts
(1) Data backups are carried out by MMM every 24 hours and are always to be regarded as current within the next 24 hours. A data backup failure caused by viruses or hacker attacks cannot be replaced.
(2) The customer has to save or express the data collected by his questionnaires or the results of his surveys at regular intervals by “CSV-Export”. The customer must take the necessary protective measures himself.
(3) MMM expressly points out that when a questionnaire is deleted as well as a user subordinate to the customer, the associated data is finally deleted from the system. Furthermore, it is pointed out that if the customer restarts a questionnaire, all data collected to date by this questionnaire will be deleted. It is not possible to restore the deleted data.
(4) If the client has not requested an extension within 30 days after the expiration of his subscription or tariff, MMM is entitled to delete all data of the client including all users, questionnaires and survey results available in his user account finally and irrevocably.
§10. Third party property rights
(1) MMM guarantees that the service within the Federal Republic of Germany is free from third party industrial property rights which exclude or restrict its use by the customer.
(2) If it is legally established that the use of the service by the customer is inadmissible due to infringement of third party property rights, MMM may at its own discretion and at its own expense
– the right to use the service,
– make the service non-protected, or
– replaced the service with a comparable one.
The customer shall not be entitled to any further claims in the event of infringement of the industrial property rights of third parties.
§11. Liability and limitation of liability
(1) MMM shall only be liable for damages if MMM has violated an essential contractual obligation (cardinal obligation) in a manner endangering the purpose of the contract or if the damage is attributable to gross negligence or intent on the part of MMM. If the culpable violation of an essential contractual obligation (cardinal obligation) is not grossly negligent or intentional, the liability is limited to the damage that was reasonably foreseeable for MMM at the conclusion of the contract. The same limitation of liability applies in the event of an intentional or grossly negligent breach of duties by employees, staff or agents who are not organs or executives of MMM.
(2) The compensation of the foreseeable, typically occurring damage according to paragraph (1) usually consists in the free renewed use of the respective services by the client. This applies in particular in the following cases:
– Preparation of technically incorrect test results due to malfunctions;
– incorrect transmission or storage of data by MMM;
– Failure by MMM to transmit or store data as required.
(3) Liability for warranted characteristics, personal injury and mandatory statutory provisions shall remain unaffected.
(4) MMM is not liable for the fact that the client can achieve the purpose pursued by him with the use of the service, in particular not for the fact that a questionnaire delivers too few or for the client useless results, because he is not answered by the test persons in the presented way. Furthermore, MMM is not liable for the client’s use of the survey results.
(5) MMM is not liable for indirect damages, consequential damages or loss of profit.
(6) If a case of force majeure occurs, MMM is not responsible for the resulting delay or impossibility of performance. All unforeseeable events or events which – even if they were foreseeable – lie outside the sphere of influence of MMM and whose effects on the fulfilment of the contract cannot be prevented by reasonable efforts of both parties to the contract shall be regarded as force majeure.
(7) A liability of MMM for damages resulting from the use of the free tariffs and/or beta versions is excluded. However, MMM endeavors to publish these without significant or known defects.
(8) The client indemnifies MMM against all claims asserted against MMM by third parties due to the violation of their rights or due to violations of the law through the illegal or abusive use of the service. In this regard, the client also assumes the costs of legal defence, in particular all lawyer and court costs.
(9) Unless otherwise stated, any further claims of the customer – for whatever legal reasons – are excluded.
(1) In the case of contracts without minimum contract periods, the contractual relationship may be terminated by both contractual parties with 14 days’ notice to the end of the month.
(2) For contracts with minimum contract periods, the contractual relationship may be terminated at the earliest 3 months to the end of the minimum contract period.
(3) The right of termination for good cause remains unaffected.
(4) Notices of termination must be in writing in order to be effective.
(5) If the client terminates the contract, MMM has the express right to delete without reservation all data transferred and stored by the client on the MMM server, including all users, questionnaires and survey results available in the client’s user account.
(6) Active disturbances or endangerment of the service by actions of the user lead to immediate termination without notice. In this case MMM reserves the right to assert claims for damages against the user.
§13. Organizational matters
(1) All business transactions shall be conducted at the following address: Motaev Marx Motaev (MMM) GbR
Vahrenwalder Str. 253
(2). Where the case-law permits electronic form for certain types of correspondence, it may also be used.
§14 Final Provisions and Invalidity
(1) German law shall apply to both partners for these GTC and the contracts based thereon. Place of performance and jurisdiction is the registered office of MMM.
(2) If one of the provisions of these GTC is invalid, the validity of the remaining provisions shall remain unaffected. The ineffective provision shall be replaced in such a way that the new provision comes as close as possible to the economic and legal meaning pursued by the ineffective provision.
Hanover, 25 May 2019