Software Subscription Terms
Ndatara Terms & Conditions for the provision of Services
Last updated 11.11.2019
- Acceptance
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE NDATARA SERVICE.
BY USING NDATARA TEMBO PLATFORM (“PLATFORM”), PROFESSIONAL CLIENT SERVICES OR WEB SITE (COLLECTIVELY “SERVICES”), YOU INDICATE YOUR ACCEPTANCE OF THIS ENTIRE AGREEMENT.
Subject to your compliance with these Terms and your payment of any applicable fees, SurveyEngine grants You a non-exclusive, non-transferable, royalty-free, revocable license and lease to use the Services.
Unless specifically agreed by Ndatara in writing, the use of the Services in this agreement, applies only to the Customer as per the Definitions Section below. - Definitions
Account: An online management interface into the Ndatara Platform accessed via login credentials and comprising all Customer content and respondent data.
Customer: The entity or individual (interchangeably referred to as “You” or “Your”) accepting this agreement or receiving the benefit of the Ndatara Services or any person accessing the Ndatara Service by any method on behalf of that entity.
Customer Servers: A server or servers specifically owned or operated by the Customer running Ndatara Platform.
Content: Any information including but not limited to questions, responses, panels, instructions, data, specifications, graphics, text, video (interchangeably referred to as “Materials”) produced by, uploaded to or related to provision of the Services.
Monthly Respondent Cap: The number of monthly Respondent completions before the Usage Overage rate is applied.
Respondent: An individual who participates in an online survey by providing responses to questions in that survey.
Servers: A server or servers owned or operated by Ndatara running the Platform.
Services: Any benefit provided by Ndatara including but not limited to the Ndatara Tembo Platform, Analysis, Interpretation, Reporting, Content, Training, Technical Support, Consulting or Advice.
Subscription: An agreement to use the Ndatara Services which may involve provision of an online account and login to the Platform for either a fixed, optionally recurring, period.
Ndatara: The company Ndatara (referred to as “Us” or “We”) providing the Services.
Platform: Refers to the functioning Ndatara Software delivered on servers and administered by Ndatara. In this context it specifically refers to the servers hosting the Customers’s account and content.
Website: Refers explicitly to the site at http://ndatara.com. - Intellectual Property
Neither these Terms nor your use of the Services grants you ownership in the ‘Services or the content you access through the Services (other than your Content). Except as permitted by Ndatara’s Brand and Trademark Use Policy, these Terms do not grant you any right to use Ndatara’s trademarks or other brand elements.
Ndatara is the licensor of all Software and documentation provided to allow use of the Services. Software title, interest and rights to the Software remain the property of Ndatara. All intellectual and technical concepts contained within the Service are proprietary to Ndatara and are protected by Copyright.
Ndatara owns all right, title and interest in and to the Services as delivered, all related software and technology, and all Ndatara content provided in connection with the Services, including all intellectual property rights. Nothing contained on the Platform or “Website” should be construed as granting any license or right to use any trademark without the prior written permission of Ndatara.
Ndatara reserves the right to include traffic generated by all Servers it hosts in its overall accounting of page views, unique users, and other usage measures. This includes providing web traffic measurement companies with all URLs hosted by Ndatara for use in their projection of Ndatara’ overall traffic.
Certain content and information provided through the Platform, including, without limitation, instructions, presentations, demonstrations, documents, graphics, layouts, computational procedures, computer code, reports; collectively, the “SurveyEngine Materials”, are provided to you by Ndatara and are the copyrighted and/or trademarked work of SurveyEngine.
Ndatara grants the Customer a limited non-exclusive and non-transferable license to use and to display the Ndatara Materials solely for the Customer in connection with the Ndatara Tembo Platform.
This limited license terminates automatically, without prior notice to the Customer, if the Customer breaches any term of this Agreement. Except for the limited rights granted hereunder, you acknowledge that you have no right, title or interest in or to any Ndatara Content.
Except as expressly permitted in these terms, the Customer has no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Ndatara Content or Platform in any manner.
The Website and the Ndatara Tembo Platform and all information and screens appearing on both, including documents, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Ndatara. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. Ndatara reserves all rights in the Website and the Platform that are not expressly granted.
You retain ownership of all of your intellectual property rights in your Content used in connection with the Services. SurveyEngine does not claim ownership over any of your Content. These Terms do not grant Ndatara any licenses or rights to your Content except for the limited rights needed for Ndatara to provide the Services, and as otherwise described in these Terms.
You own all rights, title and interest in all Content provided to Ndatara as part of the Services including the survey look-and-feel, textual and graphical content and response data. In addition, all reports and downloads derived from your Content and response data are also owned by you.
You grant Ndatara a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by Ndatara’s privacy policies. This license for such limited purposes continues even after you stop using our Services, though you may have the ability to delete your Content such that Ndatara no longer has access to it. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provideNdatara with feedback about the Services, we may use your feedback without any obligation to you.
Ndatara responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify Ndatara for claims of copyright infringement.
Ndatara may publish links in its Services to Internet websites maintained by third parties. Ndatara does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
The Services display content provided by others that is not owned by Ndatara. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Ndatara is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorised by law to do so. - Confidentiality
Confidential Information includes these statements of work, license agreements, business and marketing plans and strategies, non-public business and technology information, trade secrets, know-how, Content included in surveys by you, any written materials marked as confidential and any other information, including visual and oral information, which reasonably should be understood to be confidential. Ndatara will use commercially reasonable technology and industry best practices to ensure the integrity and security of all confidential information with respect to theft, piracy, and unauthorised access.
All such Content are deemed Confidential Information as described below and will not be utilised by Ndatara for any purpose other than to perform its obligations as the service provider.
We do not sell or make available specific information about our Customers or their data, except in cooperation with law enforcement in regards to violations of applicable laws. We maintain a database of Customer information that is used only for internal purposes such as technical support, notifying Customer of changes, or enhancements to the Service.
You acknowledge that, in order to ensure compliance with legal obligations, SurveyEngine may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, Ndatara otherwise has no obligation to monitor or review any content submitted to the Services. - Indemnity
To the extent allowed by law, you agree to indemnify and hold harmless Ndatara against any and all claims and expenses, including reasonable legal fees, arising from the use of the Services and this web site. This indemnification expressly includes your responsibility for any and all liability arising from the violation or infringement of copyrights, trademarks or other proprietary rights and from the use of any libellous or unlawful material contained within your survey or web site.
Where materials are used in the production of Surveys through the Platform the Customer shall be responsible for:
Obtaining all necessary permission, authorisations, licenses and consents required as well as being responsible for the payment of all royalties or license fees associated with the use of the materials; and
Ensuring that the material provided is not obscene, offensive, upsetting, defamatory, personally offensive or in any way unsuitable for people under the age of eighteen (18) years, and does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
Where the Customer provides material it indemnifies Ndatara against the loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging infringement of its intellectual property rights or any other rights.
The Customer shall indemnify, defend and hold harmless Ndatara, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including legal fees on a full indemnity basis) arising out of or in connection with:
The Customer’s use of the Services, including Customer’s use of or reliance on any information or materials including survey results or responses obtained through the use of the Services, any other use of the Services by a third party using Customer’s account (whether or not authorised by the Customer,
The Customer’s breach of this Agreement, including any of the Customer’s representations and warranties under this Agreement, or
The Customer’s contravention of any law applicable to the Customer. - Liability
Ndatara disclaims any liability for damages caused by its services or the contents of this web site, unless due to its intentional wrongdoing.
In the event that, notwithstanding the foregoing exclusions of liability, Ndatara, any of its affiliates, or any of their respective directors, officers, employees, servants or agents is liable to the Customer for any amounts under this agreement under any theory of recovery, whether based on contract, tort, strict liability or otherwise, Ndatara’s (or such affiliates’, director’s, officer’s, employee’s, servant’s or agent’s, as applicable) total liability in respect of such amounts shall not exceed the fees you have paid to Ndatara.
In no event shall Ndatara be liable for lost profits, lost data, interruptions of business, or any special, incidental or consequential damages arising out of the use of or inability to use this web site or the services or products, regardless of whether Ndatara has notice of the potential for such loss or damage.
Ndatara makes no guarantee of the accuracy, correctness, or completeness of any information on these web pages, surveys, databases, or results, and are not responsible for:
any errors or omissions arising from the use of such information;
any failures, delays, or interruptions in the delivery of any content or services contained on our servers; or
losses or damages arising from the use of the content or services provided by Ndatara. - Reasonable Use
Acceptable Use
The Platform is intended to be used for legitimate research purposes and willing survey respondents using a modern web browser/operating system and an Internet connection.
Normal use of the Platform means operation by a single human user to create and preview surveys, invite respondents to participate, collect data and analyse and download the results.
A vulnerability assessment or penetration test on the Service is permitted with permission from Ndatara. The results from any assessment or test are considered confidential information as defined in the terms.
It is permitted to collect up to the Monthly Respondent Cap of respondents per calendar month, as agreed in the Enterprise License with Ndatara.
If the number of completions exceeds the Monthly Respondent Cap, the Customer will be charged for each Respondent over the Monthly Respondent Cap at no less than the rate of 3.00 Euros per Respondent.
It is the Customer’s responsibility to manage the number of completion to ensure they are not charged over the Monthly Respondent Cap.
The Monthly Respondent Cap is not cumulative, non-transferable and non-redeemable outside of each month.
Customer Responsibilities
The Customer acknowledges and agrees that they, and not Ndatara, are responsible for all activities occurring in connection with the use of that account, whether or not the Customer authorises such activities.
The Customer is responsible for controlling access to their account by creating a strong password, protecting that password and to prevent unauthorised account usage or users.
The Customer warrants that the information provided for the use of the account complete and accurate and that such information is kept up to date.
The Customer is responsible for creating backups of any Content entered, uploaded, collected or received through the use of the Services. Ndatara shall not be liable for any removal, deletion or failure to retain any such Content.
All survey questions, information, data, text, software, music, sound, photographs, images, video, survey responses, messages or other materials communicated, submitted or transmitted by the Customer or Respondents of Customer’s surveys through the Services, whether publicly posted or privately transmitted, are the sole responsibility of the Customer. The Customer may be held legally liable for survey(s) or for the manner in which Customer Content is distributed to third parties.
When emailing surveys or invitations to surveys, you are responsible to ensure that the recipients have opted in to, or otherwise validly consented to, receiving communications from you or another sender on whose behalf you may be acting.
The Customer must comply with all other rules or regulations applicable to the Customer, including, among other things, securities regulations.
The Customer must comply with the current SurveyEngine privacy policy (http://ndatara.com/privacy.html) and all privacy policies or similar policies or procedures to which the Customer may be bound that are related to these of the Services; or that comprises or includes any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any similar form of solicitation.
Furthermore The Customer acknowledges that:
Ndatara may withdraw from the Account any content which in Ndatara’s reasonable opinion is likely to subject or has subjected Ndatara to unfavourable regulatory action, violate or has violated any law or has been subject to errors or omissions in transmission or transcription.
Ndatara may disable the Customer’s account and Customer’s access to use the Services and Ndatara may recover from the Customer any losses, damages, costs or expenses incurred by Ndatara resulting from or arising out of the Customer’s non-compliance with any provision of these Terms.
By using the Platform, the Customer may be exposed to User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
Ndatara does not monitor Customer Content. However, we reserve the right to remove any Content from our Service that we determine is in violation of our Terms.
Ndatara does not control the Customer Content originating from the Customer, Respondents to Customer’s surveys or other users of the Services, and does not guarantee the accuracy, integrity or quality of such Content. Notwithstanding the foregoing, Ndatara may, but is not obligated to, review all Customer Content and block, modify, terminate access to, or remove any such Customer Content that SurveyEngine, in its sole discretion, considers to be non-compliant with any of the requirements of these terms.
Ndatara reserves the right to remove Customer Content from its databases at any time and from time to time without notice.
The Customer, and not Ndatara, is responsible for all Customer Content that Customer or Respondents of the Customer’s surveys upload, post, email, distribute, communicate, transmit, or otherwise make available using the SurveyEngine Platform or that is otherwise made available through the use of Customer’s account, whether or not authorised by the Customer
Unacceptable Use
Ndatara may suspend accounts or terminate any aspect of Service at any time without notice for conduct that violates these Terms. Additionally, Users who violate these Terms or have knowledge of misuse in their surveys or accounts are subject to legal liability and prosecution. The following is a non-exhaustive list of content and behaviours that are UNACCEPTABLE to SurveyEngine.
Customer may not:
Reverse engineer or tamper with the security or operations of any aspect of the Ndatara Tembo Platform or Servers;
Remove, obscure or alter copyright information obtained from Ndatara Content, the Platform or the Website;
Make unauthorised copies of any content in the Ndatara software;
Except for valid research purposes, upload Content that contains or contains links to for example but not limited to: nudity, pornography, adult content, sex, profanity, or foul language;
Upload Content that condones, promotes, contains, or links to warez, cracks, hacks, their associated utilities, or other piracy related information, whether for educational purposes or not;
Upload Content that infringes any copyrights, trademarks, patents, trade secrets or other intellectual property;
Upload Content that is racist or otherwise extremely offensive to others, including content that aggravates, harasses, threatens, defames or abuses others;
Upload binary files or executable code to the Platform;
Use the Services to send SPAM nor to send SPAM in any connection to the Services. The Customer must comply with all local and international laws applicable to the Customer and a a minimum, Customers must comply with the CAN-SPAM Act of 2003 (USA);
Use the Services to send surveys, polls, or other materials to individuals under the age of majority in his or her place of residence (“minors”) unless the Customer is permitted to do so under all applicable laws, or to harm minors in any way, and shall not send surveys, polls, or other materials to minors that would subject Ndatara to any local or international law, rule or regulation governing children’s privacy, rights of personality or otherwise related to protecting minors;
Interfere with or disrupt the Services or Servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform;
Engage in excessive usage of the Services, as determined by SurveyEngine in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Ndatara Tembo Platform, or disrupts the availability of the Services for other the Customer
Use the Ndatara Platform to create surveys that would generate an amount of Bandwidth unreasonable for a standard survey, specifically, no single survey should generate in total and (inbound plus outbound) more than 10Mb bandwidth for a single Respondent;
Attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Services in any manner;
Upload, post, email, distribute, communicate, transmit, or otherwise make available Content that:
contains viruses or similar malicious software that may damage the operation of a computer using the Services;
is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party;
that the Customer does not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement). - False Representation
The Customer shall not impersonate any other person or entity, including Ndatara, or a Ndatara official, forum leader, guide or host, or falsely state or otherwise misrepresent the Customer’s affiliation with any other person or entity;
The Customer shall, if a Customer uses the Platform to send a survey, not mislead the recipients of that survey that the Customer may have the ability to associate individual responses to that survey with the individual email addresses to which that survey was sent by stating that the Customer has no such ability (unless the Customer has requested SurveyEngine to disable such feature).
The Customer shall not upload survey links to message boards or newsgroups that are not relevant to the subject matter of the survey, or that prohibit such uploading without Ndatara’s prior written consent.
The Customer further acknowledges and agrees that Ndatara may cooperate with any governmental authority in connection with any investigation into the Customer’s use of the Services, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any the Customer Content, and any other information pertaining to the Customer or to the Customer’s use of the Services, to such governmental authority in connection with any such investigation. - Termination
Ndatara reserves the right to suspend or terminate the Customer’s use of the Services at any time, without notice, if the Customer is found in violation of these terms.
This Agreement shall become effective upon first use of the Services or by the date indicated in a separate agreement, whichever is the sooner and continue indefinitely until it is terminated.
Unless otherwise agreed, Subscriptions to the Platform will have a default period of 6 months from the first Customer login.
On the lapsing of a Subscription period, Ndatara will at its sole discretion cancel that subscription and terminate this agreement.
Ndatara may cancel the any Subscriptions and automatically terminate this Agreement immediately by notice to the Customer in the event that the Customer breaches any of Customer’s representations, warranties, or obligations under this Agreement (including any of the Customer’s obligations or contravenes any applicable law.
The Customer may cancel any Customer’s Subscription and terminate this Agreement by written notice to Ndatara in the event that Ndatara materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty days of Ndatara’s receipt of notice of breach from such the Customer.
Upon termination of this Agreement for any reason, the Customer shall immediately cease all use of the Platform, and the Customer acknowledges and agrees that Ndatara may, in its sole discretion, take any measures Ndatara reasonably deems necessary or desirable to prevent further use by the Customer of the Platform, including by blocking the Customer’s IP address.
The Customer acknowledges and agrees that upon termination of this Agreement, Ndatara shall not be obliged to retain any the Customer Content (including survey or poll results or responses) or to provide the same to the Customer, but may elect to do so in its sole discretion.
Termination of this Agreement for breach shall not entitle the Customer to a refund of any unearned Subscription fees previously paid by the Customer.
The Customer may terminate this agreement early by providing 30 days written notice prior to your required termination date to Ndatara, and by immediately paying 50% of all future monthly payments due. - Provision of Platform and Servers
Ndatara reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Platform or any part thereof, or the Customer’s access thereto, and to modify, suspend or delete the Platform or any part thereof, and Ndatara will use commercially reasonable efforts to provide reasonable advance notice of changes that significantly impact the Services in a negative manner.
In the case of changes that significantly impact the Services in a negative manner, the Customer is entitled to cancel the Customer’s Subscription, if any. The Customer acknowledges and agrees that Ndatara shall not be liable to the Customer, or to any third party, for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Platform.
If the Customer engages in excessive usage of the Platform as per the provisions of the Reasonable Use Section, Ndatara may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Platform to other the Customerd, including by limiting or suspending the Customer’s access to the Platform, or by cancelling any Subscription and terminating this Agreement.
The Customer acknowledges and agrees that the Platform are provided “as is,” “where is,” “as available,” and “with all faults,” and that, Ndatara has no responsibility or liability for the loss or deletion of, or failure to receive, process, or store any the Customer content (including survey or poll results or responses) maintained or transmitted using the Services.
The Customer acknowledges and agrees that the information, software, products, and services contained in or available through the Platform, including information, software, products and services made available by other Customerd of the Platform, may include inaccuracies or errors.
The Customer further acknowledges and agrees that the Customer, and not Ndatara, is responsible for evaluating the accuracy, reliability, completeness, and usefulness of any information obtained through the use of the Platform.
Ndatara makes no representations or express warranties, including any warranties of merchantability or fitness for a particular purpose, regarding the suitability, reliability, availability, timeliness, quality, or lack of viruses, or other harmful components of the Platform, or the accuracy of such information, software, products and services.
Ndatara does not make any warranties, representations or conditions with respect to any third party content, express or implied.
To the fullest extent permitted by applicable law, Ndatara, its affiliates, and their respective directors, officers, employees, servants and agents hereby disclaim all warranties, express or implied, with regard to such information, software, products or services, including any warranty of non-infringement of third party rights, and the implied warranties of merchantability and fitness for purpose.
In the case where the Customer operates the Ndatara Tembo Platform on their own servers, the Customer:
Is responsible for all aspects of server management including but not limited to suitability; CPU, RAM and bandwidth capacity; payment; upgrades; domain name and IP records.
Is expressly forbidden from reselling the any component Services without written consent from SurveyEngine.
Allows Ndatara administrator access to the Customer Servers.
Informs Ndatara as to any changes in the location, state, operation, access, authorisation, capacity or termination of the Customer Servers.
May not remove or alter any Ndatara attribution, logos or contact information from webpages produced by the SurveyEngine software.
The Customer will be forewarned of software upgrades and have the opportunity to defer upgrades to a suitable time. - Provision of Technical Support & Consulting
Unless otherwise agreed, Ndatara will provide technical and consulting support at the rate specified under the Payment section.
Except by other arrangement, Ndatara provides support weekdays during business hours (CET). Response time and Resolution as specified in the table below are only guaranteed within normal business hours. - Payment
Unless expressly outlined in a separate agreement, payment terms are as follows:
Monthly Subscription Fees, if applicable must be paid 7 days in advance of the month the usage is billed for.
Ad-hoc consulting and support fees must be paid in advance or within of 7 days of receipt of Invoice.
Unless agreed separately, project invoices require a 50% upfront payment before work can begin. At the end of the project the remaining 50% will be invoiced along with variations incurred or deducted.
Technical or Consulting will be charged at an hourly rate of 200 Euros unless agreed otherwise
Unless specified, use of the Platform will incur a subscription fee of 1,500 Euros per month
Payments may be made by direct debit, electronic transfer, cheque or money order.
Payments for Services may be liable for Value Added Tax (VAT) in addition to any amounts quoted.
Failure to meet payment terms will result in termination of this agreement with SurveyEngine within 7 days of the date payment was originally due.
Termination of this agreement will result in the immediate deactivation of the Account. - Other Terms
These Terms and any other relevant terms, conditions, policies or agreements constitute the entire agreement and understanding between you and Ndatara. If there is a conflict or contradiction between the provisions of these Terms and any other agreement, the relevant section of the agreement shall prevail in the following order:
a) Ndatara License Agreement or other valid agreement between Ndatara and your organisation;
b) Ndatara Statement of Work;
You are not permitted to sub-license the Services in whole or in part to third parties without prior written permission of Ndatara.
In the event that any one or more of these provisions should be held invalid, illegal or unenforceable, such provisions will be modified, if possible, to the minimum extent necessary to make them valid and enforceable, or if they cannot be so modified, then severed, and the remaining provisions contained herein will not in any way be affected or impaired.
Ndatara’s failure to enforce strict performance of any provision of these Terms does not constitute a waiver of the right to subsequently enforce such provision.
These Terms create no rights for third party beneficiaries.
In no event shall Ndatara, its affiliates, or their respective directors, officers, employees, servants or agents be liable for any direct, indirect, punitive, incidental, special or consequential damages whatsoever, including damages for lost profits, lost revenue, loss of use or data, or costs of cover, arising out of or in any way connected with this agreement, whether based on contract, tort, strict liability or any other legal theory, even if Ndatara has been advised of the possibility of such damages, including damages arising out of:
the use or performance of, the delay in providing, the failure to provide, or the inability to use, the Ndatara Tembo Platform or the services, or
any information, software, products or services contained in or available through the SurveyEngine Services, including information, software, products and services made available by other the Customers of the Platform.
Unauthorised access to or alteration of any transmissions or data, any material or data sent or received or not sent or not received, or any transactions entered into through the Site or the services or in reliance upon any information obtained through the use of the Services,
any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of a third party’s rights, including intellectual property rights, or any content sent using, or included in, the Site or the services by any third party.
If the Customer is dissatisfied with any portion of the Services, The Customer’s sole and exclusive remedy is to terminate this agreement and discontinue using the Services.
The Customer acknowledges and agrees that without the foregoing exclusions and limitations of liability, Ndatara would not be able to offer the Site or the services, and that such exclusions and limitations of liability shall apply, even if they would cause the Customer’s remedies under this agreement to fail of their essential purpose. - Severability
If a provision of this agreement is or becomes legally invalid or if there is any gap that needs to be filled, the validity of the remainder of the agreement shall not be affected thereby. Invalid provisions shall be replaced by common consent with such provisions which come as close as possible to the intended result of the invalid provision. In the event of gaps such provision shall come into force by common consent which comes as close as possible to the intended result of the agreement, should the matter have been considered in advance. Any changes of or amendments to this Agreement must be in writing to become effective. - Governing Law
This Agreement, and the respective rights and obligations of the parties hereunder, shall solely be governed by, and construed in accordance with, the laws of the Federal Republic of Germany, protection laws, excluding the UN Sales Convention. - Force Majeure
If performance by either party is prevented, restricted or delayed due to any cause arising from or attributable to acts, events, non-happenings, omissions, accidents or acts of God beyond the reasonable control of the party due to perform, the party so affected shall be excused from performance to the extent of such prevention, restriction or delay. No party shall have any liability to any other party for delay or non-delivery in the performance of its obligations under this Agreement, when attributable to acts of God, compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it proves to be invalid, fires, war, riots, labour disputes such as strikes or lockouts, sabotage, unusually severe weather or any other cause beyon the reasonable control of such Party.
Service Levels
| Severity Level | Issue Description | Response Time | Resolution Time |
| 1 Catastrophic | Admin Platform outage or Data collection outage- Not possible to log in, collect data or access server. | 30 minutes | 1 hour |
| 2 Critical Function | Function Outage- failure of any single ordinarily working function not included under ‘Catastrophic’ | 4 hours | 24 hours |
| 3 WorkAround | Sub optimal operation of normally working functionality or display. – An immediate short term ‘work around’ is possible. | 4 hours | 1 week |
| 4 Request | Any issue not included above and not included in standard functionality | Within 1 Day |
- Support Requests of severity level 4 have no obligation for SurveyEngine to remedy.
- Work on Support requests of levels 1,2,3 will not be charged.
- Ad hoc consulting will be treated as a level 4 support request. Consulting hours will be tracked in 15 minute increments and billed at an agreed rate or at the standard rate specified under ‘Payments’.
- Project work will be quoted in advance as a level 4 support request.