orbiz Software GmbH
orbiz Software GmbH - designated as "orbiz" in the following - operates the service 2ask. The service 2ask is a web-based service which enables the orbiz customer - designated as the "customer" in the following - to create and carry out Internet-based online surveys.
Subject of the Conditions
orbiz provides its service solely on the basis of these conditions - regardless whether it is free of charge or subject to charge. Other General and Special Terms and Conditions from orbiz and the customer do not apply.
§ 1 Beginning of Contract and Contract Requirements
- The use of the service requires the customer to register in advance with 2ask. orbiz reserves the right to reject the completion of a contract in individual cases.
- The contract does not come into force until confirmed by orbiz, generally via email.
- If no costs are applicable to the plan selected by the customer, the customer may use the service according to the specification of services / price list after receiving confirmation from orbiz.
- If costs apply to the plan selected by the customer, the customer may partially use the service after receiving the confirmation from orbiz (creating, configuring as well as conducting the survey). However, it is not possible to view the results of the survey until the customer has paid the costs agreed upon for use of the service.
- If the package chosen by the customer is part of the support program for study and research, the customer may be asked to give proof of his or her affiliation to a study or research program (e.g. confirmation of enrollment). Eligible for the use of such packages are teachers, professors, research and teaching assistants and students at state owned or state recognized schools, colleges and universities as long as the package is not used for commercial purpose.
§ 2 Specification of services
- The customer obtains the right to use the service according to his/her selected rate in conjunction with the specification of services / price list in compliance with the respective technical and operational possibilities. The exact scope of services is based on the specification of services, price list as well as any potential supplementary conditions and special agreements and these stipulations. The customer has the right to use the services defined in the specification of services during the duration of the respective contract year. It is not possible to carry over individual or entire non-used parts of the service, such as non-used surveys and participants into the following contract year. This also holds for the subscription payment scheme.
- The design, structure, and scope of the functions of the service, in particular the visual presentation of the content, are solely at the discretion of orbiz. The customer is not entitled to exert influence on this, unless a different agreement has been reached, e.g. in the specification of services. orbiz is authorized to embed its insignia visibly into surveys, or otherwise mark them with notices or advertisements. It is only possible to replace or remove these by booking a plan which authorizes their removal.
- orbiz provides the user with the contingents defined according to their booked plan (active surveys, questions per survey, participants). If these contingents are not sufficient, the user can, subject to availability at orbiz, change to a larger package that includes the contingents needed, or make a separate agreement with orbiz.
- Unless otherwise agreed, a plan includes 50 administrable surveys (for feasible surveys see price list), 10 administrable reports, 10 MB storage space, 1 hour of support, as well as the right to send twice as many emails or generate twice as many access codes as the number of participants included in the plan. If unlimited participants are included in the respective plan, the fair-use quota for e-mails and access codes is 10'000. Larger quotas require a separate agreement with orbiz.
- Users may only use the free plan for test purposes.
§ 3 Hardware and software requirements
The hardware and software requirements are based on the specification of services and price list.
§ 4 Obligations of the user
- The customer is not permitted to make his/her user account accessible to third parties.
- The customer must keep his/her access data and personal password in a safe place to prevent third party access.
- The customer must change the password in regular intervals for security reasons. He/she may change the password online anytime. If the customer suspects that a third party has knowledge of the password, he/she must change it immediately.
- If orbiz has a reasonable suspicion that the customer’s access data have been used without authorization by a third party, orbiz has the right to block his/her access. In such cases, the customer will be provided new access data by orbiz.
- According to paragraphs (1) - (4), the term third party does not pertain to co-workers of customers, who are corporate bodies or public facilities. However, in such cases the customer must be aware that only co-workers who are needed to carry out the customer’s tasks gain knowledge of the access data. Partners of orbiz, who have completed a relevant written partner contract, may also make orbiz services available to this third party, as long as the partner books the service on his/her behalf or books services for a third party. The partner must make sure that the third party only uses the service in compliance with the agreed conditions, in particular those stipulated here and the specification of services.
- The customer may only use the service for its intended purpose - conducting surveys - and not in any other unconventional matter. Above all, he/she may not abuse the service, e.g. to send advertisement emails (spamming) or junk mails.
- If the User uses the option of sending e-mails via 2ask, the customer shall ensure that the e-mail recipients have agreed in advance to receive these e-mails and that the sender e-mail address used by the User is administered by the User.
- The customer is solely responsible for the legal admissibility of their surveys, as well as their content. The customer also assumes responsibility for compliance with legal regulations, in particular legal-notice (imprint) obligations, data protection notices, copyrights, competition rights and ancillary copyrights. E.g. also for the use of picture, sound and film recordings (media) as well as other documents and materials. The user shall indemnify orbiz upon first request from any claims for damages arising from the infringement of the above and similar rights. In addition, the user assumes all claims for compensation arising from the use of image, sound and film recordings.
- The customer pledges not to publish any content which could become a public nuisance and offend against common decency. In particular, he/she pledges not to add any sexually offensive, racist, radical and inhuman or contemptuous content.
- The customer must immediately notify orbiz of any changes of data relevant to orbiz, such as changes to his/her address, power of representation, and other incidents.
- If the customer violates his/her obligations, orbiz has the right to remove the content from the Internet without a warning and at the expense of the customer as well as terminate the contract without previous notice.
- The customer must make sure that the infrastructure of the service is not overcharged by excessive usage. Excessive usage is generally defined as more than 1000 surveys accessed per day by the customer.
- If the customer has chosen a free plan, the customer may not collect or process any personally identifiable data using 2ask, as the free plan may only be used for test purposes.
- The user grants orbiz the right to be named in the form of his name and logo on the reference list of 2ask or other advertising materials.
§ 5 Compensation
The customer can only demand compensation from orbiz on the basis of indisputable or legally established customer claims towards orbiz.
§ 6 Extension / Termination of Contract
- The duration of the contract is based on the specification of services and price list in conjunction with the plan selected by the customer.
- Unless the user cancels before the end of the contract term, the contract is automatically renewed again for the duration of the contract term specified for the selected rate. Early termination is excluded.
- The contract must be terminated in writing - by fax or letter.
- Both parties reserve the right to extraordinary notice of cancellation. In either case, orbiz has a right to extraordinary notice of cancellation, if the customer violates these conditions or other application conditions of use from orbiz.
- orbiz is authorized to discontinue services for which the customer does not pay, at any time and without prior notice.
§ 7 Deleting surveys, contact data, survey results, etc.
- The customer may delete his/her surveys, contact data, and survey results at any time using his/her access data provided by orbiz.
- Thirty days after the expiration of the contract, orbiz has the right to irrevocably delete all data provided by the customer, including the surveys, contact data, and survey results without prior notification.
§ 8 Data protection
- orbiz pledges not to use the survey results of the customer or make them available to a third party in any way.
- orbiz reserves the right to compile, save (electronically as well) and use personal and business-related data from the customer without any further consent for the purpose of the service, e.g. allocation, use, evaluation of data and for accounting purposes. The data may also be used internally within the firm and transmitted to other firms/partners authorized by orbiz in order to implement the contract, for the use of a hotline for technical support, in particular, as well as for accounting purposes.
- The customer must respect legal regulations while designing the questionnaires and carrying out the surveys.
§ 9 Availability, data storage and support
- orbiz generally provides the service without interruptions. However, orbiz cannot guarantee that the service is continuously available and functions without restrictions. It also cannot be ruled out that delays and interferences take place while providing the services due to incidents and circumstances which are beyond the influence of orbiz, e.g. local Internet connectivity.
- Disruptions for which orbiz is not liable as well as disruptions due to maintenance work, etc. do not lead to a right to cancel or claims for damage on behalf of the customer.
- orbiz secures the data as follows: once per 24 hours. The customer is obligated to regularly save all surveys, contact data, and survey results in appropriate time intervals by downloading them.
- orbiz reminds the customer that data can be lost even when saved properly. The customer is thus obligated to regularly save data such as survey results and contact data by downloading them.
- The user is solely responsible for the backup and transmission of data upon expiration of a contractual relationship. The user must carry out the corresponding measures before the end of the contract. After that, a 100% loss of data may occur
- The support offered by orbiz varies according to the service description / price list of the plan selected by the user.
§ 10 Guarantee
- During the duration of the contract orbiz guarantees that the service provided by orbiz fulfils the functions agreed upon. However, a prerequisite for the guarantee is that the service is used in compliance with the contract.
- If reproducible errors occur during the guarantee period, the customer must notify orbiz of the observed malfunctions in writing and precisely specify the defective parts of the service and orbiz will correct the malfunctions. The specifications on the troubleshooting list, which orbiz provides the customer via email when necessary, must be taken into account. On request, the customer must also provide orbiz the data he/she has used which have led to the malfunction and cooperate adequately with orbiz in analyzing and correcting the malfunction free of charge in compliance with the contract. orbiz may correct the malfunction the way in which it deems appropriate.
- The contracting parties agree that even with state-of-the-art technology it is not possible to create software that works faultlessly under all conditions of application. The customer can inquire on the homepage of the service which browser and operating systems the service has been optimized for at a given point in time. No guarantee can be made to the customer that the service will function with other browsers and operating systems. orbiz has the right to modify these system requirements without notification. These modifications do not substantiate a reason for cancellation.
- The customer is not entitled to have an error corrected when the error is not reproducible or cannot be displayed as automated data. Moreover, the guarantee does not apply in cases in which it cannot be proven that orbiz is liable for a certain malfunction. Minor errors which do not or only insignificantly impair the usability of the service do not have to be corrected by orbiz. Such minor errors also do not substantiate a reduction of the user fee or a withdrawal from the contract.
- If expenditures arise due to the notification of defects, which are not based on malfunctions in the services provided by orbiz, the customer will compensate orbiz for the resulting costs on a time and material basis in accordance with the currently valid price list from orbiz.
- In the case of a guarantee or liability claim to orbiz, the contributory negligence of the customer must be considered accordingly, in particular in the case of insufficient problem reports or insufficient data storage.
- orbiz must correct errors within an appropriate timeframe after having received the written error report.
- If orbiz does not correct significant errors within an appropriate timeframe after having received a written error report, the customer can set an appropriate additional respite for orbiz with a statement that he/she refuses the rectification of defects after the specified time period. This can be done at the earliest after the second attempt to rectify the defect fails.
§ 11 Default in payment
Default of payment occurs without reminder. In the case of invoices after the expiry of 7 days from the date of issue of the invoice, in the case of regular fees for booked plans 7 days after the due date. In the event of default of payment, orbiz is entitled to charge default interest at the respective statutory rate including a flat rate for default. The right to claim a higher interest charge remains unaffected. Return debit notes will be charged with 19,00 Euro plus VAT per return debit note. orbiz reserves the right to assert further claims due to default of payment.
In the event of default of payment by the user, orbiz is entitled to interrupt the contractual services without further reminder or extension until payment is received. In case of a delay in payment of more than 2 months, orbiz is entitled to terminate the contract without notice. In all other respects, the statutory provisions on default shall apply.
- If orbiz is in default with the owed service, liability is based on the Telecommunications Customer Protection Ordinance (TKV). The user only has the right to withdraw from the contract if orbiz does not comply with a reasonable grace period set by the user for reasons for which orbiz is responsible.
- Delays not caused by orbiz:
If non-compliance is due to an event beyond the control of orbiz, the date or deadline shall be extended by a reasonable period of time.
§ 12 Third party trademark rights
- If third party property rights are violated during the conventionary use of the service and if the customer is thus partially or completely legally prohibited from using the service, orbiz will do one of the following at its own option and expense
- grant the customer the right to use the service, or
- modify the service so that it becomes non-infringing, or
- replace the service with a similar one, which does not violate property rights
- If a corrective measure according to Paragraph (1) was not possible or economically reasonable, orbiz will cancel the concerned parts of the service and settle the matter with an appropriate compensation for use.
- orbiz is freed from these obligations, when the customer does not act in consultation with orbiz while averting such third party claims.
- The customer is not entitled to more extensive claims resulting from violations of third party trademark rights, in particular those for compensation for consequential damage and indirect damage.
§ 13 Liability
The following limitations apply to the scope of liability of orbiz as well as its employees, assistants and vicarious agents - regardless of the legal grounds.
- orbiz assumes liability for direct personal and material damage caused to the customer either deliberately or due to gross negligence. In the case of direct damage, which was caused by the slightly negligent violation of obligations essential to the contract, orbiz is only liable for the generally predictable damage. Indirect damage entails the time and effort required to restore the damaged commodity. As a rule, the compensation of damage for the customer is thus his/her right to use the service again free of charge. orbiz is also liable for warranted characteristics. Regardless of their grounds, however, orbiz is not liable for more extensive claims, in particular those for compensation for indirect damages and consequential damages.
- The customer is obligated to immediately report damages and losses, for which orbiz must cover the expenses, to orbiz in writing or have them recorded by orbiz.
- orbiz is only liable for supplying data when it deliberately caused their loss or due to gross negligence and when the data can be reconstructed from data material which is available in machine-readable from and within a justifiable timeframe. If it is not possible to restore the data, orbiz will credit the customer the according number of "surveys including survey participants" to his/her account. Further claims for damage on behalf of the customer are ruled out. A similar regulation holds for cases in which flawed survey results were produced due to technical problems.
- orbiz’ liability for damages which were caused due to gross negligence of members of management or high-ranking employees of orbiz as well as orbiz’ potential liability on the basis of the Product Liability Law (Produkthaftungsgesetz) will remain unaffected. Liability due to urgent legal regulations also remains unaffected.
- orbiz is not liable or responsible for whether the survey designed by the customer is suitable to fulfil the purpose the customer desires. orbiz also does not guarantee that the survey will lead to the desired success and number of survey participants.
§ 14 User fee
For the use of the 2ask service, the user has to pay in advance the prices shown in the respective valid service description or price list at the time of the registration for the service. The user will receive an invoice from orbiz for this.
The user fee is due immediately upon receipt of the invoice.
In the case of contract extensions, the current usage fee on the price list is due again with the contract extension.
In the case of payments via the SEPA direct debit, the advance notice period is reduced to 1 day.
§ 15 Change of user fee, the specification of services, or these conditions, etc.
orbiz is authorized to modify the specification of services, the price list, the conditions as well as any other existing regulations at any point in time. orbiz will notify the customer of such changes either in writing or by email and simultaneously inform the customer that the customer can file an objection within one calendar month after the notification of change was sent, as long as the change is to the disadvantage of the customer.
If the customer does not file an objection in due time, the contract will be continued according to the new conditions and stipulations.
If the customer objects in due time, both contracting parties have the right to terminate the contract with orbiz within four weeks after the objection was filed.
In such cases, the cancellation period is two weeks before the end of the month and must be confirmed as soon as possible.
§ 16 Legal reliability
The customer is only responsible for the legal reliability of the surveys designed by him/her and their content. The customer assumes responsibility for the compliance with legal regulations, in particular data protection, copyrights, competition regulations and ancillary rights while dealing with posted images, acoustic and film recordings (media) as well as other documents and materials and immediately indemnifies orbiz and its partners from any claims for damage due to the violation of these rights, as long as orbiz is not at fault.
§ 17 General Terms and Conditions
The customer’s General Terms and Conditions will not become part of a contract completed on the basis of these conditions. This also holds when orbiz has not explicitly objected to this.
§ 18 Statute of limitations
Claims due to liability during contract negotiations and default in performance of contract are barred by statute six months after accruement. All other claims are barred by statute three years after accruement, as long as no shorter legal or contractual statutes of limitations apply or the law does not prescribe mandatory longer time periods.
§ 19 Confidentiality
orbiz and the user mutually undertake to maintain strictest secrecy about all confidential processes, in particular business or trade secrets of the respective other contractual partner, which come to their knowledge within the scope of the preparation, implementation and fulfillment of their contractual relationship, and to neither pass on nor utilize these in any other way. This shall apply to any unauthorized third parties, i.e. also to unauthorized employees of the contractual partners, unless the disclosure of information is necessary for the proper fulfillment of the contractual obligations.
§ 20 General Information
- The user can only assign rights from the contract concluded on the basis of these conditions with the written consent of orbiz. orbiz is entitled to use third parties or to commission third parties to fulfill its obligations.
- There are no ancillary agreements to the contract concluded on the basis of these terms and conditions.
- Should provisions of the contract concluded on the basis of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the parties undertake to replace the invalid provision with one that comes as close as possible to the economic intent.
- Place of jurisdiction and place of performance, as far as legally permissible, is Konstanz. However, each contracting party may also be sued at its general place of jurisdiction.
- The law of the Federal Republic of Germany shall apply to all legal relationships regulated in the contract based on these terms and conditions. The UN Convention on Contracts for the International Sale of Goods is not applicable. The protection of the performance and service of orbiz according to international regulations or regulations of third countries is not affected by this.
- If the contract concluded on the basis of these Terms and Conditions has been concluded in writing, the following provisions shall apply in addition:
The cancellation, amendment and supplementation of the contract concluded on the basis of these terms and conditions must be in writing in order to be legally effective. The same shall apply to the waiver of the requirement of the written form. Handwritten amendments to the contract concluded on the basis of these Terms and Conditions are not permitted.
§ 21 Complaints
orbiz Software GmbH hopes that you are completely satisfied with the service. If this is not the case, please contact:
orbiz Software GmbH
§ 22 Notice on the Right of Withdrawal
The private customer has the right to repeal his/her declaration of intent to conclude the contract on the use of the service. The deadline for doing so is two weeks and begins when the contract is concluded (arrival of the confirmation from orbiz). To comply with the deadline, it suffices to send notification in text form (e-mail, fax, letters, etc.) in due time. However, the declaration of withdrawal must clearly specify the sender. As soon as the customer has saved a questionnaire or participant for a survey, the right to withdrawal expires.