Please read these Terms of Service and all referenced or linked materials carefully before using the FanExam service.
1. FanExam Services
FanExam provides a comprehensive solution for measuring Net Promoter® Score and managing the customer experience on websites and web-based businesses (our Services). Our Services may change from time to time, or we may stop (permanently or temporarily) providing our Services (or any features therein) to you or to users generally. We reserve the right to create limits on access and use of the Services in our sole discretion.
We may make available certain software to install on your website in order to access and use our Services. As long as you comply with the terms of this Agreement, you have the right to install and use our software to access and use the Services, for your own website (and not for use with other websites). This license is for the sole purpose of enabling you to use the Services, in the manner permitted by the terms of this Agreement. You may not copy, modify, distribute, sell, or lease our software or any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of our software, unless laws prohibit those restrictions or you have our written permission. FanExam uses third party providers for its underlying infrastructure, such as, but not limited to, computer services, computer networking, data center hosting and email services. FanExam can not be held responsible for the (lack of) performance of these services, including, but not limited to, data loss, data breaches, and service interruptions.
2. Your FanExam Account
In order to use our Services you will need to register and create an account. By creating an account, you represent that:
- (i) the information you provide is truthful and accurate;
- (ii) you are of legal age to agree to the terms of this Agreement;
- (iii) your use of our Services does not violate any applicable law or regulation or the terms of this Agreement.
You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with your use of our Services. You must immediately notify FanExam of any unauthorized uses of your account or any other breaches of security. FanExam will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
By creating an account, you agree that FanExam may send you periodic product updates and other communications, which are considered part of the Services and your account, which you may not be able to opt-out from receiving.
3. Acceptable Use Policies
Use of the Services
You are responsible for your use of the Services and you agree that you will only use our Services in compliance with the terms of this Agreement and all applicable laws and regulations.
If you are creating your custom questions/answers, you may not describe questions and answers in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and FanExam may change or remove any description or question/answer that it considers inappropriate or unlawful, or otherwise likely to cause FanExam liability.
If you are using custom questions/answers by means of the Services (collectively referred to as, Content), you are entirely responsible for that Content, and any harm resulting from that Content. This is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By providing or making Content available, you represent and warrant that:
- the distribution, display and use of the Content (through the Services) will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- you have permission from your employer or the owner of the Content to display, post or make available the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not libelous or defamatory, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
- your survey is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
- your survey is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your survey’s name is not the name of a person other than yourself or company other than your own; and
- you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by FanExam or otherwise.
By submitting Content to FanExam for inclusion on your website, you grant FanExam a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your survey. If you delete Content, FanExam will use reasonable efforts to remove it from the Services, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
Without limiting any other remedies, FanExam has the right (though not the obligation) to, in FanExam’s sole discretion:
- (i) refuse or remove any Content that, in FanExam’s reasonable opinion, violates any FanExam policy or is in any way harmful or objectionable, or
- (ii) terminate or deny access to and use of the Services to any individual or entity for any reason, in FanExam’s sole discretion.
4. Unauthorized Activities
You may not do any of the following while using or accessing the Services:
- attempt to access or search the Services or download content from the Services through the use of any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by us or other generally available third party
- access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers;
- use the Services for the benefit of any third party or in any manner not permitted by the terms of this Agreement;
- violate any applicable law or regulation; or
- encourage or enable someone to do any of the foregoing.
We reserve the right to access, read, preserve, and disclose any information provided through the Services we reasonably believe is necessary to:
- (i) satisfy any applicable law, regulation, legal process or governmental request,
- (ii) enforce this Agreement, including investigation of potential violations hereof,
- (iii) detect, prevent, or otherwise address fraud, security or technical issues,
- (iv) respond to user support requests, or
- (v) protect the rights, property or safety of FanExam, our users and the public.
5. Fees & Payment
We charge fees for the use of certain features or aspects of our Services, which are described with those features and services. These fees are subject to change at any time. You agree that we may charge your payment account and that you will pay the applicable fees assessed to your account for the services you have purchased. Some services may start with a free trial. If you have (or someone in your company has) used those services previously, you may not be eligible to receive a free trial. We will not charge your account during the free trial period. Once the trial period has ended (unless you cancel the services prior to the end of the free trial period), we will charge your account the subscription fee at the beginning of your subscription and on a recurring basis thereafter until you cancel. You will not receive a notice from us that your trial period has ended. You must cancel your subscription before your billing period renews to avoid the billing of the next period’s fees to your account.
You will not receive a refund for any partial billing period cancellation.
6. Your Representations
You represent and warrant that:
- (i) you have the necessary power and authority to enter into this Agreement (if you are agreeing to these terms on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity
to this Agreement) and
You can terminate your account at any time by deactivating your account or by providing notice of termination to us. We reserve the right to terminate or suspend your account or your access to any or all portions of the Services at any time, for any reason, including your violation or breach of any terms in this Agreement. Upon termination, all rights and licenses granted to you in this Agreement immediately end. If your account or access to our Services is terminated or suspended because you violated this Agreement, you will not be entitled to any refund of any fees nor will any fees be credited or reimbursed to you in any form and you will have no further right to access any of the foregoing or your account.
8. Information and Intellectual Property Rights
- (i) has your permission;
- (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of FanExam, our users or the public; or
- (iii) provides such information in anonymous or aggregated form provided that such information is not identifiable of you.
You agree that FanExam may identify you (or your company and use your company’s logo) on the Site and in marketing materials to identify you or your company as a user of the Services, and you hereby grant us a non-exclusive, royalty-free license to do so on our Site or in any media now or later developed in connection with any marketing, promotion or advertising of the Services.
If you provide suggestions, ideas, feedback, or recommendations to us regarding our Services (Feedback), we will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as we see fit, without any obligation or restriction of any kind to you.
Our Services and our Site are protected by copyright, trademark, and other laws of the United States and foreign countries. FanExam and its licensors exclusively own all right, title and interest in and to the Services and the Site, including all associated intellectual property rights. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or the Site. All rights not granted to you under this Agreement are reserved.
You agree to indemnify and hold harmless FanExam, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of
- (i) your use of the Services (other than as expressly permitted by this Agreement), including but not limited to a breach or violation by you of this Agreement, and
- (ii) the accessing and use of any user data in order to provide the Services to you.
The Services and the Site are provided on an “AS IS,” “AS AVAILABLE” and “WHERE-IS” basis with no warranty of any kind. FanExam and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements or that the Services or Site will be available on an uninterrupted, secure, or error-free basis.
Our Services may display, or contain links to, third party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by other users or other third parties on our Services, or which is accessible through or may be located using our Services (Third Party Content) are those of the respective authors or producers and not ours.
We do not control Third Party Content and do not guarantee the accuracy, integrity or quality of such Third Party Content. We are not responsible for the performance of, we do not endorse, and we are not responsible or liable for, any Third Party Content or any information or materials advertised in any Third Party Content. Through our Services, you may be exposed to content that is offensive, indecent, or objectionable. We are not be responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any goods, services, or information available on or through any third party service or Third Party Content. It is your responsibility to evaluate the information, opinion, advice, or other content available on and through our Services.
11. Limitation of Liability
IN NO EVENT WILL FANEXAM, OR ITS SUPPLIERS OR LICENSORS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
- (I) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES;
- (II) THE COST OF PROCUREMENT OR SUBSTITUTE PRODUCTS OR SERVICES;
- (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR
- (IV) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO FANEXAM UNDER THIS AGREEMENT DURING THE ONE (1) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION.
FanExam shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
This Agreement constitutes the entire agreement between FanExam and you concerning the subject matter hereof, and may only be modified by a written amendment signed by an authorized executive of FanExam, or by the posting by FanExam of a revised version on the Site and/or through the Services and when the new terms take effect. Your continued use of or access to the Services once those terms take effect constitutes acceptance of those changes. This Agreement, any access to or use of the Services will be governed by the laws of The Netherlands, excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in The Netherlands. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may not assign your rights under this Agreement without FanExam’s written consent. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
Data Processing Agreement (DPA)
This Data Processing Agreement (the “DPA”) forms an Annex to the Terms and Conditions (the “Terms”) between you as the customer (the “Customer”) and FanExam. FanExam and the Customer are jointly referred to as the “Parties”.
The definitions of capitalized terms included in the Terms shall also apply in this DPA, unless otherwise specifically stated herein. This DPA is intended to ensure mutual compliance by FanExam and the Customer with applicable legislation concerning privacy and data protection, and to guarantee an appropriate level of protection of personal data.
SCOPE & PURPOSE OF PROCESSING
The data, which may be processed and submitted during the course of the Customer’s use of the Site and the Service (the “Customer Data”), may contain personal data. In principle, the Customer is responsible for determining the purpose and means for the processing of such personal data. Therefore, the Customer shall be regarded as the “Controller” of personal data, as defined in European privacy legislation. FanExam shall be regarded as the Customer’s “Processor”.
FanExam undertakes to process Customer Data solely to provide and improve the Site and the Service for the Customer.
FanExam may carry out scientific or statistical research into how the Site and the Service is used in order to improve the Site and the Service. As a general principle, all data is anonymous or anonymized as much and as soon as possible.
DIVISION OF RESPONSIBILITY
Under this DPA, FanExam is solely responsible for its processing of personal data as a part of delivering the Service to the Customer in accordance with the Customer’s instructions and under the express (final) responsibility of the Customer.
The Customer is responsible for acquiring any opt-in permission from the data subjects as may be required pursuant to applicable privacy legislation.
FanExam will continuously implement and update adequate technical and organizational security measures to prevent loss and unlawful processing of personal data, given the state of the art, the sensitivity of the personal data and the costs related to the security measures. FanExam cannot guarantee, however, that the security measures will be effective under all circumstances.
Both Parties shall exercise proper care with respect to the user login details, in order to avoid unauthorized access to and use of the Site and the Service, and any Customer Data.
The Customer shall require its Authorized Users to exercise proper care with respect to their user login details.
OBLIGATION TO NOTIFY OF SECURITY BREACHES
In case FanExam becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, and such breach is likely to materially affect the Customer, Fanexam shall promptly inform the Customer hereof. FanExam shall also have the right to inform any data subject adversely affected by the breach directly, as well as any competent authority, if FanExam in good faith understands this to be its legal or moral obligation.
In case the Customer discovers vulnerability on the Site and/or the Service that may lead to loss or unauthorized processing of Customer Data, the Customer shall inform FanExam thereof without delay. FanExam shall then investigate without undue delay whether or not the alleged vulnerability does in fact exist and notify the Customer of its findings.
The Customer shall not, nor allow its Authorized Users to, engage in any activity that may pose a risk to the availability, integrity and security of the Site and/or the Service, even if such activity would be carried out for the purpose of evaluating the security of the Site and/or the Service (e.g. a penetration test). Prior written authorization by FanExam is at all times required to engage in any activities as described in this clause.
CUSTOMER DATA RETENTION TERM
The Customer Data is stored for as long as necessary to provide the Service and its features to the Customer and its Authorized Users. Customer Data will be deleted after expiry or termination of the relevant account with FanExam if requested. The Customer may request the Customer Data of an expired account with FanExam to be deleted before the regular retention term for the Customer Data has expired.
TERM AND TERMINATION
This DPA shall come into effect at the same time as the Terms. This DPA shall remain in force until the Terms have expired or been terminated, and/or FanExam is no longer is in the possession of the Customer’s Customer Data.
Effective: May 23rd, 2018