Legal Terms

This SurveyMonkey Terms of Service & License Agreement (this "Agreement") describes the terms on which SurveyMonkey (meaning the SurveyMonkey entity determined in Section 16(a)) offers you participation in its content automation program ("the Services"). Any capitalized terms used in this Attachment which are not otherwise defined shall have the meanings set forth in your Proposal & Insertion Order to which this Attachment is attached (the "Order").

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. You indicate your agreement to the terms of this Agreement by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services. If you agree on behalf of a company or other legal entity, such as your employer, you represent that you have the authority to bind that company or entity and, in such event, "you" and "your" will refer to and apply to that company or entity. If you do not accept all the terms of this Agreement, you may not participate in or use or access any services offered through the Program. SurveyMonkey reserves the right to change any of the terms and conditions of this Agreement, or the content or features of the Program, at any time, with notice to you. Your continued use of the Program after any such change constitutes your binding acceptance of the revised Agreement.  With this in mind, you agree to and acknowledge to be bound by the following terms:

1. Program. SurveyMonkey has developed and maintains a web-based application service that enables a vendor ("Vendor") to: (a) create various customized information requests ("Questionnaires") regarding its products and services (the "Vendor Products") for general market research purposes; (b) have SurveyMonkey send Questionnaires to Vendor's designated customers (the "Customers") and to a Customer's users of the Vendor Products ("Customer Users") or alternatively SurveyMonkey can send the Questionnaires to a panel of recipients provided by SurveyMonkey ("Panel Participants") as licensed terms allow; (c) verify Customer Users" experiences with the Vendor Products or Panel Participants" experiences; (d) generate marketing materials based on those experiences; and (e) create reports and analysis based on those experiences (the "Program" or the "Services"). SurveyMonkey will collect and process all Questionnaires completed by Customers, Customer Users, and Panel Participants (the "Responses"), using commercially reasonable efforts, as deemed appropriate by SurveyMonkey in its sole discretion, to authenticate the identity of the Customers, Customer Users, and Panel Participants and verify certain facts contained in the Responses. SurveyMonkey will use selected Reponses to create and provide Vendor with TechFacts (as defined in Section 6 below).

2. Registration and Password. To participate as a Vendor in the Program, you must register with SurveyMonkey and create a unique, password-protected account for each individual from your company that wishes to have access to the Program ("Vendor Users"). You will be responsible for safeguarding your password. You also take full responsibility for any actions under your password, whether authorized by you or not. Your registration information and certain other information about you will be used by SurveyMonkey in accordance with the SurveyMonkey Privacy Policy located at http://www.techvalidate.com/privacy. You are responsible for providing and keeping your company information accurate and complete and agree that SurveyMonkey will have no responsibility or liability for failure to deliver notices that result from inaccurate or incomplete company information.

3. Vendor Information and Participation. During your participation in the Program, you will provide SurveyMonkey with (i) certain company information, including, but not limited to, Vendor-related information and Vendor Marks (as defined in Section 8(e)(ii)); (ii) Customer and Customer Users contact information; and (iii) any other information you decide to submit to SurveyMonkey or upload to the techvalidate.com site ("Site") (collectively, (i), (ii) and (iii), the "Vendor Materials").

You are solely responsible for ensuring that any Vendor Materials are complete, current, accurate and tested prior to project launch and that any Customer and Customer User will not prohibit or contest SurveyMonkey sending them Questionnaires.  Vendor Materials will not include any Customer or Customer User contact information that a Customer or Customer User provides to us outside the scope of the Questionnaire completion process. For instance, if we send a Questionnaire to a Customer or Customer User whose contact information was provided to us by you and that Customer or Customer User, after completing the Questionnaire, registers on the Site to access other materials, the contact information provided by that Customer or Customer User to us will not be considered Vendor Materials, regardless of the fact that the Customer or the Customer User originated from you.

4. Designated Contacts. At registration, you will designate an individual who will be the primary point of contact (the "Primary Contact") between you and SurveyMonkey for all matters relating to the Program. You may designate a new Primary Contact by written notice to SurveyMonkey.

5. Questionnaires. Once you register with SurveyMonkey and set up your Program account, you may begin creating customized Questionnaires. You may create as many customized Questionnaires as your license terms allow, and request that SurveyMonkey submit the Questionnaires to as many Customers, Customer Users, and Panel Participants as your license terms allow. SurveyMonkey may, in its discretion, reject any suggested questions you would like included in the Questionnaires or refuse to submit any of your Questionnaires to a Customer, Customer User, or Panel Participant. SurveyMonkey may include additional questions that are not specific to any Vendor in order to obtain demographic, industry, and response quality data by Customers, Customer Users, or the Panel Participants. SURVEYMONKEY DISCLAIMS ALL WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR ADEQUACY OF THE QUESTIONNAIRES TO ACHIEVE ANY INTENDED RESULTS.

6. TechFacts.

a. Responses. SurveyMonkey will collect and process the Responses to create "TechFacts" – translations of the Reponses into approved messages. TechFacts can take the form of:

• Customer, Customer User, or Panel Participant testimonials (quotes),
• statements (fact-based assertions),
• statistics (fact-based numerical assertions based upon a population of users),
• charts,
• case studies,
• customer reviews,
• microsites (referred to as "Research Portals" and "Collections") of your Customer, Customer User, or Panel Participant content, and
• other content

(each, a "TechFact" and collectively, "TechFacts"). Vendor can see each Response and the TechFacts derived therefrom. TechFacts are provided on an anonymous basis, – that is, they do not show the name of any Customer or Customer User unless the Vendor has requested and has obtained all required consents, approvals and waivers to create TechFacts that identify a Customer or a Customer User as the source of a TechFact.

b. Delivery. SurveyMonkey will deliver to you the TechFacts you have requested, subject to the license terms set forth in Section 8(b) (TechFact License) below. You agree not to modify, excerpt (except if such excerpts comply with the published Attribution Guidelines found at https://support.techvalidate.com/hc/en-us/articles/202408154-Requirements-for-Citing-TechValidate-Content), tamper with or alter any TechFact, nor permit any third party to do so, except to the extent such restrictions are prohibited by law. You agree not to destroy or weaken the anonymity of any TechFact that is provided on an anonymous basis, including, but not limited to, by revealing or implying the source of such TechFact or of any Response. To the knowledge of SurveyMonkey, the information contained in the Responses and included in the TechFacts has been obtained from sources believed to be reliable and authentic. HOWEVER, SURVEYMONKEY DISCLAIMS ALL WARRANTIES AS TO (I) THE ACCURACY, COMPLETENESS OR ADEQUACY OF THE INFORMATION PROVIDED IN THE RESPONSES OR CONTAINED IN THE TECHFACTS; AND (II) THE IDENTITY OF THE CUSTOMERS OR CUSTOMER USERS PROVIDING THE RESPONSES. The opinions expressed in the Responses and TechFacts are subject to change without notice.  In addition, the Vendor may choose to utilize certain software connectors to display, insert, or transfer TechFacts into Vendor's marketing, Customer Relationship Management and sales systems, including, but not limited to, Salesforce.com, Jive, Oracle Eloqua or Marketo.  SurveyMonkey expressly disclaims any liability arising in connection with the suspension, removal or blocking of TechFacts utilizing such connectors and the above‑mentioned vendor systems.

c. Status. TechFacts are considered "valid" at the time they are generated and access to such TechFacts are available for use by Vendor only during the term of this Agreement except in the following situations: (i) excluding payments you have withheld in a good faith dispute, you have not paid any accrued and outstanding Fees (as defined below) when due for longer than sixty (60) days after invoices have been sent; (ii) Customers, Customer Users, or Panel Participants have notified SurveyMonkey of a material change in their Responses and  wish to rescind their approval or consent to use such Responses; or (iii) SurveyMonkey has determined, in its sole and absolute discretion, that a TechFact is based on or contains inaccurate, incomplete or false information. Without limiting the foregoing, SurveyMonkey may at any time, in its sole and absolute discretion, and without obligation or liability to you, suspend or block access to or remove any TechFact from the Site if SurveyMonkey deems such TechFact invalid or unsuitable for the Site, Program or for distribution.

d. Unique IDs. SurveyMonkey will assign a unique identification number (the "TV ID") to each TechFact. The TV ID will appear on each copy of the TechFact. At any time, anyone may go to the Site, enter in the TV ID number and view a copy of the TechFact, check on the status of the TechFact (e.g., whether it is "valid" or suspended or blocked) and receive notifications of any changes to it (for example, notifications that the TechFact has been updated with additional information or has been replaced by a newer TechFact; that the status of the TechFact has been re-validated, re-activated, etc.).

7. No Endorsement; No Publicity. SurveyMonkey does not endorse, evaluate or guarantee any Responses or other information provided by third parties, including Customers, Customer Users, Panel Participants and you, and nothing shall be considered as an endorsement or guarantee of any Responses or other information. You shall not create or distribute information, including, but not limited to, advertisements, press releases or other marketing materials, or include links to any sites which offer information containing or suggesting an endorsement by SurveyMonkey of you or your Vendor Products. Notwithstanding the foregoing, you may accurately disclose and describe your participation in the Program and your rights to use the TechFacts created for you (for example, describing and promoting a TechFact in your marketing materials, on your website or in emails only during the term of this Agreement as long as you agree to maintain all SurveyMonkey copyright, trademark and other notices contained in any TechFact).

8. Proprietary Rights & Licenses.

a. SurveyMonkey Materials. You will have all rights to all materials that you contribute to the Program, including your Vendor Materials, your Questionnaires, and your Responses, and rights to use (as described in 8b below) the TechFacts as generated by your Responses; however, SurveyMonkey will have the right to use solely in aggregated form your Questionnaires and your Responses, for SurveyMonkey's business purposes, where "aggregated form" means that such data: (a) has been sanitized to remove your name and any specific Vendor Materials; but (b) may reference the general industry category, study type, and overall response data by Customers, Customer Users, and Panel Participants.  In addition and notwithstanding anything contrary herein, SurveyMonkey retains the rights to all contact information of each Panel Participant that it contributes to the Program and you have no rights to any Panel Participant's contact information and such contact information of each Panel Participant shall not be deemed "Vendor Materials."  Subject to your rights in your Vendor Materials, your Questionnaires, your Responses, and the TechFacts generated by your Responses as set forth herein, SurveyMonkey will own all rights, title and interest in and to any information, analyses, methodologies, specifications, documentation, software programs or tools, utilities, technology, processes, inventions, devices, techniques and materials of any kind used, created or generated by SurveyMonkey in connection with performing and providing the Program and the generation of Questionnaires, Responses and any TechFacts (collectively, the "SurveyMonkey Materials"), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights, whether registerable or not (collectively, "Intellectual Property Rights") therein. You will have no rights in the SurveyMonkey Materials except as expressly agreed to herein. Nothing in this Agreement will be deemed to restrict or limit SurveyMonkey's right to (i) perform similar services for any other party, (ii) to assign any employees or subcontractors to perform similar services for any other party or (iii) to use any TechFact; provided that in each case SurveyMonkey complies with its obligations under Section 11 with respect to your Confidential Information.

b. TechFact License. Subject to your compliance with the terms and conditions of this Agreement (including, without limitation, payment of the applicable fees in accordance with Section 10), SurveyMonkey grants you the worldwide, non-exclusive, sub-licensable right during the Term of the relevant Order (the "TechFact License"): (i) to use any TechFact generated for you, only in the exact form provided; and (ii) to copy, publicly display and perform, transmit and distribute the TechFacts in the exact form provided for your own marketing purposes. You agree not to modify, tamper with, alter or excerpt any TechFact, nor permit any third party to do so, without SurveyMonkey's prior written consent. You agree to maintain all SurveyMonkey copyright, trademark and other notices contained in any TechFact. Following expiration or termination of this Agreement or the applicable Order, you may use the downloaded, static TechFacts for internal, offline use only. The layout or form of the TechFacts shall be deemed Survey Monkey Intellectual Property.

c. Vendor Materials. Subject to SurveyMonkey's ownership rights in the SurveyMonkey Materials as set forth in Section 8(a), you will own all rights, title and interest in any Vendor Materials, including all Intellectual Property Rights therein.

d. Vendor Licenses. To allow SurveyMonkey to offer you the Program, you hereby grant SurveyMonkey, during the term of the Agreement, a non-exclusive, fully transferable and sub-licensable, worldwide, fully paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display your Vendor Materials.  In addition, after the term of this Agreement, you hereby grant SurveyMonkey a non-exclusive, fully transferable and sub-licensable, worldwide, fully paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display your Questionnaires and your Responses solely in aggregated form, for SurveyMonkey's business purposes, where "aggregated form" means that such data: (a) has been sanitized to remove your name and any specific Vendor Materials; but (b) may reference the general industry category, study type, and overall response data by Customers, Customer Users, or Panel Participants.

e. Trademark License.

i. SurveyMonkey Outbound: During the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, you will have the right to use the trade names, trademarks, logos and designations in or associated with the SurveyMonkey Program (the "SurveyMonkey Marks") solely for purposes of identifying TechFacts generated for you, solely in connection with your permitted activities under this Agreement during the term of this Agreement. You agree that the SurveyMonkey Marks and all associated goodwill are and will remain the sole property of SurveyMonkey, that any goodwill generated as a result of your licensed use of SurveyMonkey Marks belongs exclusively to SurveyMonkey and inures solely to the benefit of SurveyMonkey, and that your use of SurveyMonkey Marks is subject to SurveyMonkey's control of the quality of any products or services with respect to which you may be authorized to use SurveyMonkey Marks.

ii. Vendor Outbound: You authorize SurveyMonkey to use your trade names, trademarks, logos and designations in or associated with you and your Vendor Products (the "Vendor Marks") in presentations, as a feature on the SurveyMonkey Site and in the Program on the Site, marketing materials, customer lists and financial reports, on any TechFacts produced for you, to identify you as a participant in the Program and in connection with SurveyMonkey's marketing, distribution and provision of the Program during the term of this Agreement. SurveyMonkey agrees that your Vendor Marks and all associated goodwill are and will remain your sole property, that any goodwill generated as a result of SurveyMonkey's licensed use of your Vendor Marks belongs exclusively to you and inures solely to your benefit. 

f. Feedback. From time to time, you may provide SurveyMonkey with feedback, comments and suggestions for improvements regarding the Program ("Feedback"). You hereby grant SurveyMonkey a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to use, copy, modify, create derivative works based upon, distribute, display, perform and transmit such Feedback.

9. Warranties. You represent and warrant that:

• you have full power and authority to enter into this Agreement;
• your Vendor Materials are accurate, complete and current;
• you are the owner of or are licensed to use and disclose the Vendor Materials and Vendor Marks and to grant SurveyMonkey the rights herein, including any necessary consent, authorization, release, clearance or license of any third party (including but not limited authorizations related to any rights of privacy or publicity, as may be necessary);
• your provision of Vendor Materials and your grant of rights to SurveyMonkey hereunder do not and will not conflict with or result in a breach or violation of, or constitute a default under, the terms and conditions of any contract or agreement;
• To your knowledge, your Vendor Materials and Vendor Marks do not and will not violate any law or regulation, including but not limited to laws governing false or deceptive advertising, sweepstakes, comparative advertising or trade disparagement;
• To your knowledge, your Vendor Materials and Vendor Marks do not and will not: (i) contain any misrepresentations or content that is defamatory; (i) infringe or violate any intellectual property or proprietary right of any third party, including but not limited to any rights of privacy or publicity; or (iii) contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
• your provision of any Customer information to SurveyMonkey and your request that SurveyMonkey contact and send Questionnaires to Customers and Customer Users on your behalf complies with all applicable laws, including privacy law and that such Customers and Customer Users have consented to the sending of Questionnaires to them;
• you have obtained all required consents, approvals and waivers to create TechFacts that identify a Customer or a Customer User as the source of a TechFact;
• you will not nor will you authorize third parties to generate fraudulent, automated or otherwise-invalid information, Customer or Customer Users contacts or Responses related to your Vendor Materials; and
• you are generally familiar with the nature of the Internet, you will comply with all laws, rules and regulations that may apply and you will not engage in any illegal or fraudulent business practice.

SurveyMonkey represents and warrants that:

• SurveyMonkey has the full power and authority to enter into this Agreement; and
• To the knowledge of SurveyMonkey, the Program does not infringe upon the intellectual property rights of any third party.

10. Payment. Calculation of the annual fees you owe SurveyMonkey for the services provided under this Agreement ("Fees") is dependent on what Program services you have selected. Annual Fees are due and payable in advance in full, unless otherwise agreed upon in writing by SurveyMonkey. Fees are non-cancelable and non-refundable. SurveyMonkey will issue invoices on the effective date of this Agreement and on each anniversary thereof. You will remit payment within thirty (30) days of the date of the applicable SurveyMonkey invoice. Any invoice not paid within such thirty (30) day period will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is lower. SurveyMonkey may elect to accumulate multiple charges and invoice or charge you when your unpaid Fees total a threshold amount. Fees will exclude all applicable sales, use, value added or other applicable taxes, tariffs or duties ("Taxes"), payment of which will be the sole responsibility of you (excluding any taxes based on SurveyMonkey's net income). If any such Taxes arise, You will pay such Taxes in addition to all other amounts payable under this Agreement, unless You provide SurveyMonkey with a valid tax exemption certificate or other documentary proof, issued by an appropriate taxing authority, that no tax should be charged. You will promptly reimburse SurveyMonkey for any such amounts that SurveyMonkey pays on your behalf. For the purposes of checking credit, effecting payment and servicing your company, SurveyMonkey may share with companies who work on its behalf, such as payment processors and credit agencies, any credit-card and related payment information that you provide.

11. Confidential Information.  SurveyMonkey's Confidential Information means: (i) any SurveyMonkey business or technical information, including but not limited to any SurveyMonkey Materials; (ii) the Program and trial features and all related software, technology, guidelines and documentation; (iii) amounts paid or payable, and other statistics relating to the Program; and (iv) SurveyMonkey's methods for customizing Questionnaires and creating TechFacts. Your Confidential Information means any confidential business or technical information you provide to SurveyMonkey, including but not limited to any Vendor Materials.  During the term of this Agreement, each party may receive Your Confidential Information or SurveyMonkey Confidential Information from the other party.  Except as expressly authorized by this Agreement, each party will use reasonable efforts to maintain the confidentiality of all such information and will not use it except for the purposes of this Agreement, and no party will use less effort than it ordinarily uses with respect to its own Confidential Information. The foregoing will not restrict either party from disclosing Your Confidential Information or SurveyMonkey Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (b) that is or becomes generally known to the public through no fault of the recipient; (c) that is rightfully known by the recipient at the time of disclosure without a confidentiality obligation; (d) that is independently developed by the recipient without use of the disclosing party's Confidential Information; (e) that the recipient rightfully obtains from a third party without disclosure restrictions; and (f) on a confidential basis to its legal or financial advisors, or prospective acquirers or investors; nor will it restrict SurveyMonkey from using Your Confidential Information related to your Customers or Customer Users in the aggregate as defined above.

12. Term and Termination. This Agreement will begin on the date you have accepted these terms and conditions and, unless terminated by either party in accordance with this section, will remain in effect for one (1) year or the length of the subscription term in an Order. At the end of such term (and each renewal term thereafter, if any), this Agreement will automatically renew for additional one (1) year terms, unless either party provides the other party with notice of nonrenewal at least thirty (30) days prior to the end of the then-current term. SurveyMonkey may immediately terminate this Agreement, or change or discontinue the Program or any aspect of the Program, for any reason at any time by providing notice through the Program system. Either party may terminate this Agreement and any Insertion Order for cause: (a) upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, administration, liquidation, or assignment for the benefit of creditors. Upon expiration or termination of this Agreement: (a) SurveyMonkey will promptly return to you or destroy all Vendor Materials in its possession or control; (b) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (c) you will, within thirty (30) days after receipt of SurveyMonkey's invoice, pay all unpaid fees and expenses. The rights and obligations of the parties contained in Sections 7 (No Endorsement; No Publicity), 8(a) (SurveyMonkey Materials), 8(b) (TechFact License, to the extent you procured the applicable TechFact prior to expiration or termination of this Agreement), 8(c) (Vendor Materials), 8(f) (Feedback), 10 (Payment, to the extent there are accrued payments due), 11 (Confidential Information), 12 (Term and Termination, related to effect of termination and survival), 13 (Indemnification), 14 (No Guarantee; Warranty Disclaimer), 15 (Limitation of Liability) and 16 (General) will survive the expiration or termination of this Agreement.

13. Indemnification.

You will indemnify, defend and hold SurveyMonkey, its directors, employees, agents, affiliates and licensors harmless from any third-party claim or liability (including settlement costs and reasonable attorneys" fees) arising out of or relating to:

(a) SurveyMonkey's use of your Vendor Materials, Vendor Marks or information derived in whole or in part using your Vendor Materials or Vendor Marks as contemplated herein;

(b) your provision of Customer or Customer User information, your request that SurveyMonkey contact and SurveyMonkey's contact of Customers and Customer Users on your behalf, and SurveyMonkey's receipt, use and processing of any Customer and Customer User information including Responses) as contemplated herein;

(c) your participation in or use of the Program (by you or anyone at your company), including but not limited to, claims relating to the accuracy of any TechFact, or to a violation of any third party's right of privacy, or of your privacy policy, arising from such participation; or

(d) Vendor's use of the Program or Services in breach of this Agreement.

SurveyMonkey will indemnify, defend, and hold You harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim that the SurveyMonkey technology used to provide the Services to Customer infringes any copyright, U.S. patent, trademark or trade secrets of such third party. However, in no event will SurveyMonkey have any obligations or liability under this Section arising from: (a) use of any Services in a modified form or in combination with materials not furnished or authorized by SurveyMonkey; or (b) any content or data provided by the Customer, end users, or third parties.

14. No Guarantee; Warranty Disclaimer. SurveyMonkey makes no guarantee that participation in the Program will secure any success or generate any new customer leads or purchases from your Questionnaires or the TechFacts, or that your Questionnaires will be served to or returned by Customers or Customer Users. SURVEYMONKEY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SURVEYMONKEY DOES NOT WARRANT (A) THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS; (B) THAT THE PROGRAM OR THE TECHFACTS WILL BE ERROR FREE OR AVAILABLE ON AN UNINTERRUPTED BASIS OR (C) THAT ANY ERRORS WILL BE CORRECTED.

15. Limitation of Liability. IN NO EVENT WILL SURVEYMONKEY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR ANY WORK PRODUCT PROVIDED BY SURVEYMONKEY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SURVEYMONKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SURVEYMONKEY'S TOTAL LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF THE AMOUNTS PAID OR PAYABLE TO SURVEYMONKEY BY YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $100,000.

16. Contracting Entity

(a) Contracting Entity Table.  In the table below, "Location" refers to where You are located (as determined by Your business address provided to SurveyMonkey) and determines which table row and SurveyMonkey entity applies to You and this Agreement:

Contracting Entity Table
User Location	Contracting Entity	Governing Law	Jurisdiction
United States	SurveyMonkey Inc., a Delaware corporation with Tax ID 37-1581003 located at 101 Lytton Avenue, Palo Alto, CA 94301, United States of America	California	State courts in Santa Clara County, California; Federal courts in the Northern District of California
Anywhere other than the United States	SurveyMonkey Europe, an Irish company located at 2 Shelbourne Buildings, Second Floor, Shelbourne Rd, Dublin 4, Ireland	Ireland	Ireland

(b) References to "SurveyMonkey", "we", "us", and "our" are references to the applicable Contracting Entity specified in Contracting Entity Table.  The Services are provided by that contracting entity.

(c) In any proceedings instituted by a party to enforce this Agreement, the prevailing party shall have the right to collect from the other party the reasonable costs and expenses incurred by the prevailing party in conducting the legal proceeding, including reasonable attorneys' fees and disbursements, and court costs.

17. Arbitration and Dispute Resolution

IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS. THIS SECTION PROVIDES THAT ANY DISPUTE BETWEEN YOU AND SURVEYMONKEY MUST BE RESOLVED BY BINDING ARBITRATION THAT REPLACES THE RIGHT TO GO TO COURT BEFORE A JUDGE OR A JURY, AND MAY LIMIT YOUR RIGHTS TO DISCOVERY OR TO APPEAL. IT FURTHER PROVIDES THAT YOU WILL NOT BE ABLE TO BRING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN COURT, NOR WILL YOU BE ABLE TO BRING ANY CLAIM IN ARBITRATION AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION.  

(a) Any claim, dispute, or controversy raised by either You or SurveyMonkey against the other arising from this Agreement or Your use of the Site and/or Program or any information You receive from SurveyMonkey (the "Claim" or "Claims") shall be resolved through binding arbitration with the following organization and under the following governing law:

Contracting Entity Table
User Location	Contracting Entity	Arbitrator	Governing Law
United States	SurveyMonkey Inc., a Delaware corporation with Tax ID 37-1581003 located at 101 Lytton Avenue, Palo Alto, CA 94301, United States of America	The American Arbitration Association ("AAA")	California law
Anywhere other than the United States	SurveyMonkey Europe, an Irish company located at 2 Shelbourne Buildings, Second Floor, Shelbourne Rd, Dublin 4, Ireland	The International Chamber of Commerce ("ICC")	Irish law

(b) The above shall apply regardless of the particular legal theory of the Claim or Claims or the remedy sought by You.  Moreover, in no case will the Claim or Claims in the arbitration be permitted to proceed on a class or representative basis or to be consolidated with any other arbitration proceeding, and to the extent that You might otherwise be able to join or proceed in a class action against or sue SurveyMonkey in a representative capacity, such as under a private attorney general provision, You hereby expressly and knowingly waive such Claim or Claims.  

(c) The arbitration shall be before a single arbitrator, and the arbitrator will apply the substantive law identified in part (a) above (regardless of the substantive law that might be applied under choice of law principles). The arbitration shall be conducted solely and exclusive through English. The arbitrator will have the power to award to a party any remedies provided for under applicable law, except that You and SurveyMonkey agree that in no case shall either party be liable for exemplary or punitive damages.  All costs and fees, including reasonable attorneys" fees, will be allocated in accordance with the applicable arbitrator's rules.  Where the AAA is the applicable arbitrator, the Federal Arbitration Act, and not state law, shall govern the arbitrability of all Claims between You and SurveyMonkey including any and all claims or disputes concerning the validity, construction, and performance of this arbitration provision.

(d) Any Claim or dispute as to the enforceability of this arbitration provision's restrictions on your right to participate in or pursue a class action or class-wide arbitration shall be decided by a court and not an arbitrator, and shall be brought only in: a United States District Court located in San Francisco, California where you are located in the United States and otherwise in the Irish courts where you are located in any other country or location other than the United States.

18. European Privacy Law Compliance.

(a) For personal information coming from individuals located in EU member countries and Switzerland, SurveyMonkey follows the provisions of its Privacy Policy, and to the extent that any term of these Terms of Service is inconsistent with the Privacy Policy, the Privacy Policy supersedes these Terms of Service with regard to personal information coming from individuals located in EU member countries and Switzerland.  Also, to the extent that any Vendor or User provides personal information subject to European Directive 95/46 EC (the "Privacy Directive"), as may be amended or replaced from time to time, the Vendor or User hereby certifies that their provision of personal information is consistent with the requirements of the Privacy Directive with regard to the collection, use and retention of personal information.

(b) SurveyMonkey has implemented and will maintain appropriate technical, physical, and organizational measures intended to protect Customer data against unauthorized or unlawful processing and against accidental loss of, or damage to, such Customer Data.

(c) You consent to all applicable SurveyMonkey Privacy Policies, including to the transfer, processing, and storage of your data (to include any Responses and/or identities of any Customer or Customer User) in accordance with such Privacy Policies.  Nothing in this Agreement will prevent SurveyMonkey from using or disclosing your Confidential Information in any manner permitted by SurveyMonkey's Privacy Policies.

(d) Where SurveyMonkey is processing personal data, as defined in the Privacy Directive ("Personal Data") for you, SurveyMonkey will:

i. only do so in accordance with your instructions, to provide the Program services to you, and for purposes consistent with providing the Program services and in accordance with the Privacy Policies.  This Agreement constitutes an instruction to SurveyMonkey for the purpose of any processing of Personal Data and you consent to any transfer, processing, and storage of your Personal Data undertaken in accordance with such Privacy Policies and applicable law; and

ii. not store your Personal Data for longer than is necessary for the purpose of providing the Program services to you, or will otherwise only retain your Personal Data as required for legitimate business purposes (with respect to billing information), to comply with applicable laws and regulations, and as may be kept in routine backup copies made for disaster recovery purposes.

19. Third Party Requests. 

The parties may from time to time receive a request from a third party for records related to Your use of the Program services, including information in an account or identifying information about a Customer or Customer User ("Third Party Request").  Third Party Requests include search warrants, subpoenas, and other forms of legal process.

You are responsible for responding to Third Party Requests via your own access to the information, and will only contact SurveyMonkey if You are unable to obtain such information after diligent efforts. If SurveyMonkey receives a valid Third Party Request then, to the extent permitted by law, SurveyMonkey:

(a)   may inform the third party issuing such request that it should pursue the request directly with You; and

(b)  will: (i) promptly notify You of the Third Party Request; (ii) cooperate, at Your expense, with Your reasonable requests regarding Your efforts to oppose a Third Party Request; and (iii) after providing You with an opportunity to respond to or oppose the Third Party Request, SurveyMonkey may fulfill that request if we determine that we are required or permitted by law to do so.

20. General. The parties hereby consent to personal jurisdiction and venue therein. If any portion of this Agreement is found to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action. You may not assign this Agreement without SurveyMonkey's prior written consent. This Agreement may be freely assigned by SurveyMonkey without your consent. Any attempt to assign this Agreement other than as permitted above will be invalid. All communications made by you to SurveyMonkey relating to the Program will be made directly to SurveyMonkey. You acknowledge and agree that SurveyMonkey will have no responsibility or liability, directly or indirectly, for failure to deliver notices to you that result from inaccurate Program, company or contact information. This Agreement is intended for the sole benefit of the parties and is not intended to benefit any third party. The parties to this Agreement are independent contractors. Neither party is an employee, agent, joint venturer or partner of the other party, and neither party has the authority to bind the other party by contract or otherwise. The waiver of any breach or default of any provision of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent breach or default. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter. It supersedes all prior or contemporaneous agreements or understandings relating to their subject matter. To the extent that any terms of this Agreement are inconsistent with the terms of a Client purchase order, the terms of this Agreement shall prevail. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument.

21. Terms Applicable to Users in Certain Countries.

This Agreement was prepared and written in English.  Any non-English translations of this Agreement which may be made available are provided for convenience only and are not valid or legally binding.

(a)   Country-Specific Terms.  If you are located in one of the following locations, the terms thereunder apply.

France

FR1. Overdue Payments. Despite anything to the contrary in Section 10 (Payments), any overdue payments may result in a penalty at an interest rate equal to 3 times the legal interest rate or the statutory minimum rate, whichever is higher.  Additionally, the statutory penalty for collection costs may be payable by You in the event of late payment.

FR2. Media. The limited license that You grant to SurveyMonkey under Section 8(d) allows SurveyMonkey to exploit the Vendor Materials in any form and on any medium, including paper or digital media such as hard disks and flash drives, and by any means or process, including by wired, wireless, or online transmission of digitized or analog data.  The duration of such limited license extends only for the legal term of protection of the intellectual property rights attached to the Vendor Materials.

Germany

DE1. Specific Works. SurveyMonkey is not obliged to create any specific works for You.

DE2. Liability Provisions. Section 15 (Limitation of Liability)) does not apply and is replaced with the following: "SurveyMonkey's liability to you for damages caused by slight negligence will, irrespective of its legal ground, be limited as follows: (a) SurveyMonkey will be liable up to the amount of foreseeable damages typical for this type of contract for a breach of material contractual obligations; and (b) SurveyMonkey shall not be liable for a breach of any non-material contractual obligations nor for the slightly negligent breach of any other applicable duty of care.  The foregoing limitations of liability, as well as any other limitations of liability contained in these Terms, will not apply to any mandatory statutory liability, in particular to liability under the German Product Liability Act (Produkthaftungsgesetz), and liability for culpably caused personal injuries.  Additionally, such limitations of liability will not apply if and to the extent that SurveyMonkey has assumed a specific guarantee.  The foregoing shall apply accordingly to SurveyMonkey's liability to the Customer for futile expenses.  You are obliged to take adequate measures to avert and reduce damages."