Terms of Service for the “QUESTIONSTAR” Service

These Terms of Service apply to all services provided by MMM (whether provided for a fee or free of charge, and regardless of their scope) in connection with the use of the MMM Service.

The Terms of Service apply in their version valid at the relevant time. If the Customer is not a consumer within the meaning of § 13 BGB (German Civil Code), these Terms of Service also apply to all contracts concluded between MMM and the Customer for the provision of services. They also apply to all future business relationships, even if they are not expressly agreed again. The Customer is required to inform themselves about the current Terms of Service before each order or contract renewal. The Terms of Service can be viewed at any time at https://www.questionstar.com/terms-of-service.

Deviating agreements between MMM and the Customer, as well as mandatory statutory provisions, take precedence.

These Terms of Service apply exclusively. Deviating terms and conditions of the Customer have no validity.

General terms and conditions of the Customer do not become part of the contract unless MMM agrees to them in the individual case. Counter-confirmations by the Customer referring to the Customer’s own terms and conditions are hereby objected to.

All amendments and additions to contractual agreements must be set down in writing for evidentiary purposes. Notices that must be made in writing may also be made by e-mail.

MMM reserves the right to unilaterally amend these Terms of Service with effect for the future. The amended Terms of Service become part of the contract if, cumulatively:

• MMM notifies the Customer of the amendment, whereby an e-mail message to the e-mail address last known according to the Customer’s details or stored by the Customer in the customer profile is sufficient,
• the Customer is able to take note of the new Terms of Service in a reasonable manner, whereby their availability on MMM’s website is sufficient, and
• the Customer does not object to the incorporation of the new Terms of Service within 14 days of receipt of the amendment notice, whereby the notice must point out the legal consequences of a failure to object.

The scope of services follows from the plan selected by the Customer, with the conditions valid at the time of registration. The list of valid plans can be viewed at any time at https://www.questionstar.com/pricing.

MMM is entitled to change the scope of the functionality offered by the Service at any time at its own discretion, in particular to extend and redesign it. Such changes do not constitute grounds for termination. The Customer will be informed of material changes by e-mail.

MMM reserves the right to add its own advertising or other attributes of the Service and/or of MMM to the standard layout templates made available to the Customer within the Service. The Customer is entitled to remove this advertising or these attributes at any time, independently and without coordination with MMM, or to replace them with the Customer’s own advertising or with third-party advertising — provided such advertising is legally permissible and, in particular, not misleading — as well as to create the Customer’s own layout template without advertising or attributes of the Service and/or of MMM.

MMM’s offers, in particular those presented on the internet, are in principle subject to change and non-binding, unless MMM expressly designates them as binding. Contracts become binding only upon written confirmation by MMM.

By registering completely and truthfully on the Service’s website, or by submitting the registration form to MMM, the Customer makes an offer. The Customer then receives an electronic confirmation from MMM. Upon receipt of this confirmation, the contract for the use of the Service in accordance with these Terms of Service comes into effect.

After receipt of the confirmation, the Customer may use the Service immediately. However, the analysis features of the Service remain limited to 50 respondents until payment is received. Upon receipt of payment, the Customer receives full access to all collected data. If the Customer has registered for a free plan, the analysis features remain limited to 50 respondents until that plan expires.

MMM may make the conclusion of the contract dependent on the presentation of a written power of attorney, an advance payment, a guarantee declaration from a bank, or other information or confirmations. MMM reserves the right to refuse the conclusion of a contract in individual cases without stating reasons.

The contract is concluded for the period specified in the plan selected by the Customer. If the Customer does not terminate the contract before the end of the contract term, the contract is automatically renewed for the length of the previous contract term. In this case, the Customer must pay the usage fee for the new usage period.

If the Customer terminates the contract before the end of the contract term, the contract ends upon expiry of the contract term.

Contracts for which no usage fee is provided are excluded from clause (6).

If MMM uses third parties to provide the offered Service or the offered services, such third parties do not become contractual partners of the Customer.

If the Customer is a consumer (§ 13 BGB — a natural person entering into the contract for purposes that are predominantly outside their trade, business or profession), the Customer has the following right of withdrawal.

Right of withdrawal. You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period is 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us (Motaev Marx Motaev GbR, Vahrenwalder-Str. 253, 30179 Hannover, Germany, support@questionstar.com) of your decision to withdraw from this contract by an unequivocal statement (e.g. an email). You may use the model withdrawal form below, but it is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal. If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

Premature expiry / partial value. If you requested that the Service begin during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated to us your withdrawal from this contract, in comparison with the full coverage of the contract. The right of withdrawal expires if the Service has been fully performed and performance began with your prior express consent and your acknowledgement that you thereby lose your right of withdrawal upon full performance.

Model withdrawal form. (Complete and return this form only if you wish to withdraw from the contract.)

• To: Motaev Marx Motaev GbR, Vahrenwalder-Str. 253, 30179 Hannover, Germany, support@questionstar.com
• I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract for the provision of the following service: …
• Ordered on (*)/received on (*): … · Name of the consumer(s): … · Address of the consumer(s): … · Signature (only if this form is notified on paper): … · Date: …
• (*) Delete as appropriate.

For the use of the Service, the Customer must pay a usage fee.

The amount of the usage fee is determined by the plan selected by the Customer and by the service and price lists separately established by MMM. The amount of the usage fee depends neither on how many surveys the Customer conducts in total within the selected plan, nor on how many respondents the Customer surveys per survey or in total. Rather, the usage fee is to be understood as a flat price for the time-limited use of a plan.

After the Customer’s registration or sign-up with the Service, MMM will issue an invoice to the Customer and deliver it electronically. Invoices are due for payment immediately upon receipt and without deduction, unless a different payment period has been agreed.

All bank charges are borne by the Customer.

If the Customer defaults on payment despite a reminder, MMM is entitled, at its option, to

• charge default interest. For contracts with consumers (within the meaning of § 13 BGB), this amounts to 5% p.a. above the base rate (§ 247 BGB); for contracts with entrepreneurs (within the meaning of § 14 BGB), to 8% p.a. above the base rate;
• block the user account at the Customer’s expense, in which case the Customer nevertheless remains obliged to pay the usage fee;
• terminate the contract without notice.

MMM reserves the right to assert further claims arising from the payment default.

The price at which the contract is concluded remains valid for the duration of one usage period and does not change for the Customer during that period. MMM reserves the right to change plan prices at any time at its own discretion. Upon a contract renewal, the previously agreed price ceases to be valid. The contract is then renewed at the price valid for the respective plan at the time of the renewal.

All agreed prices are fixed prices. A refund to the Customer is excluded even if the volume provided for in the selected plan is substantially underused.

Contracts for which no usage fee is provided are exempt from clauses (1) to (7).

The Customer is obliged to use the Service only in accordance with these Terms of Service.

The Customer must keep the contract-relevant information stored in the user account (e.g. address) up to date at all times and disclose it. A corresponding configuration menu is available to the Customer in the user account for this purpose. The Customer is obliged to act exclusively for the Customer’s own account.

The Customer is solely responsible for the content — or parts thereof — published by the Customer on the internet or handed over to MMM for publication. The Customer undertakes to observe the laws applicable in Germany and worldwide for the protection of children and minors and of authors, and for protection against terrorism and violence. The Customer is responsible for compliance with the provisions applicable in Germany for electronic commerce (e.g. the Digitale-Dienste-Gesetz — German Digital Services Act, DDG).

The Customer undertakes in particular to observe the data protection provisions and the rules of the GDPR, and to ensure that

• respondents are informed sufficiently precisely about the purpose of the survey;
• completing questionnaires is at the sole discretion of the respondents and is not associated with any disadvantages for them;
• personal data of the respondents are not passed on to third parties or exposed to access by third parties;
• personal data of the respondents are not stored longer than necessary and are used only for the purpose pursued by the survey;
• other rights protecting the personality of the respondents are respected.

The Customer indemnifies MMM against all claims of third parties arising from the infringement of rights on account of the content — or parts thereof — published by the Customer on the internet or handed over to MMM for publication. This includes in particular the obligation to hold MMM harmless from, or to indemnify MMM against, third-party claims for damages or reimbursement of expenses, as well as against all costs of legal proceedings (e.g. court and attorney fees).

The Customer must ensure that the passwords provided to the Customer are kept out of the reach of unauthorized third parties. The loss or disclosure of passwords must be reported to MMM immediately so that misuse can be prevented. The Customer must reimburse the expenses incurred by MMM as a result.

If there is sufficient suspicion that the Customer’s access is being used by a third party without authorization, MMM may block the Customer’s access to the Service until the suspicion is dispelled. In this case, the Customer will be informed of the block without delay and will receive new access credentials from MMM as soon as the incident has been clarified.

In the case of authorized use of the Service by third parties, the Customer ensures that these third parties use the Service responsibly and in accordance with these Terms of Service. The Customer is liable for all damage incurred within the scope of the access and usage options made available to the Customer by MMM through authorized or unauthorized use by third parties.

The Customer undertakes

• to notify MMM without delay of recognizable material defects or damage in connection with the Service (errors), and to take all measures that enable the identification of the errors and their causes, or that facilitate or accelerate the elimination of the errors;
• to reimburse MMM for the costs incurred through the inspection of its technical facilities and/or the program code of the Service, if and to the extent that, after the inspection of a reported error, it turns out that its cause lay within the Customer’s area of responsibility.

If the Customer plans a survey in which the Service is expected to be subjected to excessive demands, or notices during the conduct of the survey that the Service is being subjected to excessive demands, the Customer must inform MMM without delay. If the notification of planned excessive use is not made 14 days before the survey start, the Customer’s claim to defect-free functioning of the Service lapses. Excessive use generally exists when more than 1,000 questionnaires are retrieved per day. In the event of excessive use, MMM reserves the right to charge an additional fee. This amounts to €0.10 for each retrieved questionnaire exceeding the set limit of 1,000 questionnaires per day.

If the Customer breaches the Customer’s obligations, MMM has the right to block the Customer’s user account at the Customer’s expense, as well as a right of termination without notice. In the event of false information provided during registration or of abusive use of the Service, MMM reserves the right to delete the Customer, together with the Customer’s data, immediately.

In accordance with the GDPR, MMM points out that personal data are stored. Where necessary, and unless the Customer expressly objects, these data may be passed on to third parties exclusively for the purpose of contract processing. The Customer can inform themselves at any time about the nature, scope and purpose of the collection and use of personal data by MMM at www.questionstar.com/privacy-policy.

MMM undertakes not to use the data collected during the surveys or the Customer’s survey results in any way, and not to make them available to third parties.

Clauses (1) and (2) do not apply only to the extent that MMM is legally obliged to disclose such data to third parties, in particular to state authorities, for example for the purposes of criminal prosecution.

The Customer agrees that, two weeks after the conclusion of the contract, the Customer or the Customer’s company may be named by MMM in written and electronic form as a reference customer. In the reference list, MMM may use — for private individuals — the Customer’s first name and last name, and — for legal entities — the company logo, the company name and a link to the Customer’s website. Other personal information of the Customer may be used as a reference only with the Customer’s express permission.

MMM guarantees an availability of its Service of 98% on annual average. Excluded from this are periods during which the web server cannot be reached via the internet due to technical or other problems that are beyond MMM’s control, such as force majeure, fault of third parties, etc.

• In the event of attacks (e.g. DDoS), MMM may suspend the Service for the duration of the attack.

The back end of the Service — that is, the part of the software in which surveys and questionnaires are created and managed — is optimized for the respectively current versions of the common browsers (Chrome, Firefox, Edge, Safari) with JavaScript and cookies enabled. Outdated browsers, as well as Microsoft Internet Explorer and Edge Legacy, are expressly not supported in the back end. The front end — that is, the questionnaires created with the Service — is, by contrast, functional in all modern browsers with JavaScript enabled. The Customer has no claim to the Service functioning in other operating systems and browsers. MMM reserves the right to change the system requirements at any time. Such changes do not give rise to a right of termination for the Customer.

The Customer is aware that, according to the state of the art, it is not possible to create software that is completely free of errors for all fields of application. If a reproducible error occurs during the use of the Service, the Customer will inform MMM without delay and, in a written error report or notice of defects, describe the error and the form in which it appears precisely enough that a verification of the error is feasible (e.g. by providing the error messages) and an operating error can be ruled out (e.g. by stating the steps performed). MMM will remedy this error within a reasonable time after receipt of the written error report by MMM.

If MMM is not in a position to remedy the error or to rectify it, or is entitled to refuse rectification pursuant to § 439(3) BGB, or if a delay of the rectification occurs beyond a reasonable period for which MMM is responsible, or if the remedying of the error or the rectification fails twice, the Customer is entitled, at the Customer’s option, to withdraw from the contract or to demand a corresponding reduction of the purchase price.

MMM’s obligation to remedy errors does not apply if the error is not reproducible or cannot be demonstrated by means of machine-generated output. The warranty also does not apply if the error or its cause lies outside MMM’s area of responsibility. Minor defects that do not impair the contractual use of the Service, or impair it only insignificantly, do not entitle the Customer to a reduction of the remuneration or to withdrawal from the contract; likewise, such defects do not give rise to an obligation on MMM’s part to remedy or rectify them.

In the event of a claim against MMM under warranty or liability, contributory fault on the part of the user must be taken into account appropriately, in particular in the case of insufficient error reports or insufficient data backup.

If MMM is hindered in the performance of its continuously owed services for a continuous period of at least 2 weeks, MMM warrants that the Customer is entitled to use the Service free of charge for a corresponding period beyond the contractual term. MMM is not liable for damages, including lost profits or other financial losses of the Customer.

MMM’s support services are not part of this contract. MMM does, however, provide free customer support for its customers. MMM is entitled to discontinue the support provided at any time, unless the Customer has concluded a separate written support contract with MMM for the Service.

MMM does not offer support for third-party software used in connection with the Service. To obtain support for this software, please contact the respective software manufacturer.

Data backups are performed by MMM every 24 hours and are always to be regarded as current within the following 24 hours. A failure of the data backup caused by viruses or hacker attacks shall not be compensated.

The Customer must back up the data collected by the Customer’s questionnaires and the results of the Customer’s surveys at regular intervals using the data export function, or print them out. The Customer must take the necessary protective measures independently.

MMM expressly points out that when a questionnaire, or a user subordinate to the Customer, is deleted, the data associated with it are permanently deleted from the system. A recovery of the deleted data is not possible.

If, within 30 days after the expiry of the Customer’s paid subscription, the Customer has not requested a contract renewal and has not logged into the Customer’s user account, MMM is entitled to permanently and irrevocably delete all of the Customer’s data, including all users, questionnaires and survey results present in the Customer’s user account. The same applies if a customer on a free plan has not logged into their user account within 30 days.

MMM warrants that, within the territory of the Federal Republic of Germany, the Service is free of third-party property rights that would exclude or restrict its use by the Customer.

If it is established with legal finality that the use of the Service by the Customer is impermissible due to an infringement of third-party property rights, MMM may, at its own option and at its own expense,

• procure for the Customer the right to use the Service,
• modify the Service so that it is free of such rights, or
• replace the Service with a comparable one.

The Customer has no claims beyond this in the event of an infringement of third-party property rights.

MMM is liable for damage only if MMM has breached a material contractual obligation (cardinal obligation) in a manner jeopardizing the purpose of the contract, or if the damage is attributable to gross negligence or intent on the part of MMM. If the culpable breach of a material contractual obligation (cardinal obligation) is not grossly negligent or intentional, liability is limited to the damage that was reasonably foreseeable for MMM at the time the contract was concluded. The same limitation of liability applies in the case of an intentional or grossly negligent breach of obligations by employees, staff or agents who are not corporate bodies or executive employees of MMM.

Compensation for the foreseeable, typically occurring damage pursuant to paragraph (1) generally consists in the renewed use of the respective services by the Customer free of charge. This applies in particular in the following cases:

• production of technically erroneous analysis results due to malfunctions;
• erroneous transmission or storage of data by MMM;
• failure by MMM to carry out a required transmission or storage of data.

Liability for warranted characteristics, for personal injury, and under mandatory statutory provisions remains unaffected.

MMM is not liable for the Customer being able to achieve the purpose pursued with the use of the Service, in particular not for a questionnaire delivering too few results, or results unusable for the Customer, because it is not answered by the respondents in the manner envisaged. Furthermore, MMM is not liable for the use of the survey results by the Customer.

There is no liability on the part of MMM for indirect damage, consequential damage caused by defects, or lost profit.

If a case of force majeure occurs, MMM is not responsible for the resulting delay or impossibility of performance. Force majeure means all unforeseeable events, or such events that — even if they were foreseeable — lie outside MMM’s sphere of influence and whose effects on the performance of the contract cannot be prevented by reasonable efforts of both contracting parties.

Any liability of MMM for damage arising from the use of the free plans and/or beta versions is excluded. MMM nevertheless endeavors to release these without significant or known defects.

The Customer indemnifies MMM against all claims asserted against MMM by third parties on account of the infringement of their rights, or on account of legal violations resulting from the unlawful or abusive use of the Service. In this respect, the Customer also bears the costs of the legal defense, in particular all attorney and court fees.

Unless otherwise provided, further claims of the Customer — on whatever legal grounds — are excluded.

The Customer may terminate the contract at any time before the end of the contract term by clicking the “Cancel subscription” button in the profile settings of the Customer’s user account. In this case, the contract ends upon expiry of the contract term.

Contracts for which no usage fee is provided are excluded from clause (1).

The right of termination for good cause remains unaffected.

In the event of a termination of the contract by the Customer, MMM has the express right to delete, without reservation, all data transferred by the Customer to MMM’s servers and stored there, including all users, questionnaires and survey results present in the Customer’s user account.

Active disruptions of, or threats to, the Service through 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.

All business correspondence is to be conducted via the following address:

Where the law permits electronic form for certain types of correspondence, that form may also be used.

These Terms of Service, as well as the contracts founded upon them, are governed by German law for both parties. The place of performance and the place of jurisdiction is the registered seat of MMM.

If one of the provisions of these Terms of Service is invalid, the validity of the remaining provisions remains unaffected. The invalid provision shall be replaced in such a way that the new provision comes as close as possible, economically and legally, to the purpose pursued by the invalid provision.