Terms of Use – Surwayne

The Team Enablers GmbH, Baumwall 7, 20459 Hamburg, www.tte.coach (hereinafter "TTE") operates the online software application Surwayne (available at www.surwayne.com), which is designed to facilitate anonymous in-house surveys and suggest methods of improving the evaluated projects and general team work. Customers can analyse and improve projects and team effort by anonymous evaluation of potential deficits and practical improvement suggestions which are also subject to evaluation via Surwayne. Hence, Surwayne enables Customer to analyse and evaluate the improvement methods taken and their immediate effects e.g. on team spirit and efficiency, in order to optimise projects and team work individually and effectively. Customer cannot identify individual survey responses, encouraging every team member to freely express their true opinion.

  1. Scope
    1. These Terms of Use (hereinafter "TOU") govern the use of the Surwayne tool and service (“Surwayne”).
    2. The use of Surwayne is only offered to entrepreneurs in terms of sec. 14 BGB (German Civil Code) (hereinafter “Customer”). Entrepreneurs are natural persons or legal entities or partnerships capable of holding rights that are acting in exercise of their commercial or independent professional activities on entering into a legal transaction. For clarity, TTE does not offer services to consumers.
    3. TTE reserves the right to enhance Surwayne, also in conjunction with third-party service providers, with additional optional functionalities and/or services, which may be subject to additional terms and conditions and/or that may require the conclusion of separate agreements with third parties. TTE will inform the Customer of such circumstances and will communicate additional terms and conditions where applicable.
    4. Except to the extent expressly agreed otherwise in writing, Customer’s terms and conditions do not apply to this Agreement, even if TTE has not expressly rejected their application.
  2. Subject matter of the Agreement
    1. The subject matter of this Agreement is Customer’s use of Surwayne to the agreed extent and against the agreed remuneration. Customer’s use of Surwayne is limited to the Term of the Agreement. Access to Surwayne is provided to the Customer over the Internet ("software as a service"). Any source code of any software that is part of Surwayne is not a subject of the Agreement.
    2. Pricing depends on the scope and extent of functionalities and connected services (hereinafter “Plan”) selected by Customer. The specifications of the relevant Plans and pricing can be retrieved from http://www.surwayne.com/pricing. TTE may also offer individual pricing and service packages. Upon request, TTE offers Surwayne free of charge for a 30-day trial period (limited to one trial period per Customer) which ends automatically. The account will only remain active if Customer decides for a paid plan..
    3. Use of Surwayne requires a Customer Account, which is created pursuant to Sec. 3 below. Customer can log into their Customer Account and create and manage surveys, view survey results and improvement suggestions, and otherwise retrieve and download documents such as reports in accordance with the functionalities included in the selected Plan.
    4. Surwayne is available online with an availability of 98 % on annual average. This does not include downtime due to maintenance and software updates, as well as times in which the TTE webservers cannot be reached over the internet due to technical or other problems beyond TTE’s reasonable control (in particular force majeure, fault of third parties etc.).
    5. TTE may continue to enhance Surwayne, and in particular to adjust the functionalities and services – while maintaining or extending the main functional scope – to keep up with technical advances and changing technical standards.
  3. Registration; Customer Accounts
    1. To use Surwayne, the Customer must register at http://www.surwayne.com/ in accordance with the provisions below. The registration request constitutes the Customer’s offer to conclude an Agreement in accordance with these TOU. Alternatively, Customer can sign a written order agreement based on which TTE will conduct the registration in the system.
    2. Customer initiates the registration process by submitting the email address and selecting a plan during the registration process (plans described at http://www.surwayne.com/pricing). Alternatively, Customer can instruct TTE to manually register and create an account. Upgrades to larger Plans can be made at any time during the Term of the Agreement, while downgrades to smaller Plans can only be made at the end of the respective Term and respecting the notice period.
    3. Customer must truthfully provide all information requested during the registration process, and update such information immediately through the Customer Account in case of any changes. Customer selects a password during the registration process.
    4. During the online registration process, a summary of the selected Plan and entered information will be sent to Customer, and they can correct any incorrect information by responding to the email. Alternatively, during manual registration through TTE, Customer will provide correct information on the registration sheets.
    5. If TTE wishes to accept the Customer's offer, it will grant access to the Customer Account immediately upon registration. The contract is concluded once TTE grants such access. In case of the 30-day-trial period, a paid plan contract will only be concluded of Customer demands an extension of the use of Surwayne beyond the free trial. TTE reserves the right to request additional information or proof of entrepreneur status and may rescind or terminate the contract with immediate effect if such information is not provided within a reasonable time after request or if Customer has misrepresented its entrepreneur status. Any other rights and remedies of TTE remain unaffected. TTE reserves the right to refuse a request without providing reasons; it will inform the Customer accordingly, e.g. by displaying an according message after Customer sends their registration request.
    6. Only one administrator is in charge of operating the Customer Account on behalf of the Customer. Under some Plans, Customer may create additional accounts for representatives/employees of the company within this Customer Account (“Subaccounts”), which can be used like the main Customer Account, except that they cannot be used to update global Customer information or give notices (such as termination) to TTE. For clarity, creation of a Subaccount does not increase any parameters of Customer’s Plan, such as the total number of parallel surveys a Customer can run. Customer ensures that its representatives/employees do not breach the provisions of these TOU when using the Customer account and the products. The Customer undertakes to comply with all generally applicable principles of data and system security; in particular, Customer is responsible for ensuring that all passwords are kept confidential. Customer will keep their login credentials confidential, not forward them to anyone, not enable or tolerate knowledge of the same by third parties and take the required measures to warrant confidentiality. Customer will immediately inform TTE by e-mail (support@surwayne.com) of any (suspected) abuse or loss of any login credentials.
    7. The persons acting on behalf of the Customer must be duly authorised by Customer. TTE is entitled to demand proof of such authorisation at any time in its sole discretion. TTE may suspend a Customer Account and/or Subaccount at any time if the person operating it on behalf of the Customer fails to provide the required proof of authorisation for the registration, booking and use of Surwayne within a period of one (1) week after receipt of the corresponding request.
    8. Except where expressly agreed otherwise in writing, the Agreement may not be concluded on behalf of several affiliated companies (group), i.e. for clarity Customer may only use Surwayne within their own legal entity, and not for any affiliated companies; provided, however, that Customer may use Surwayne to send survey requests to any freelancers or employees of affiliated companies that are part of a project managed by Customer.
  4. Use of Surwayne
    1. Customer may use Surwayne only in accordance with the specifications set out in their selected Plan, and must comply with all applicable laws and other legal provisions. To the extent the Plan allows for the creation of Customer’s own customized survey questions, improvement suggestions or any other upload of information, Customer will ensure that any material added/uploaded to Surwayne does not violate legal provisions or infringe third party privacy or property rights or copyrights or any other third party rights. Customer is responsible for the data and content that they provide. TTE does not check the content for correctness, absence of viruses or virus-related workability.
    2. Customer will back up the data transmitted to TTE at reasonable regular intervals (depending on the character and importance of such data) to ensure data and information can be restored in the case of data loss. In particular, the Customer will also assume responsibility for backing up the data generated and provided through Surwayne, since it is possible that the Customer may no longer be able to access such data through the Customer Account after the end of the Agreement.
    3. Indemnification

      1. Customer indemnifies TTE from and against all claims, including claims regarding compensation for costs and damages, which are asserted against TTE by other users and other Customers of TTE or other third parties, including government authorities, based on an infringement of their rights by content posted by the Customer to Surwayne. Furthermore Customer indemnifies TTE from and against all claims, including claims regarding compensation for costs and damages, which are asserted against TTE by other users and Customers of TTE or other third parties, including authorities, based on an infringement of their rights by the Customer's use of Surwayne. The Customer shall bear all reasonable costs incurred by TTE due to any of infringement of third party rights, including reasonable market-rate costs for legal defence. All further rights and damage claims by TTE remain unaffected.
      2. The preceding indemnification obligations only apply to the extent that the Customer is responsible for the relevant breach, i.e. if the Customer has acted deliberately or failed to exercise reasonable care.
  5. Rights and obligations of TTE
    1. Subject to payment of the remuneration payable pursuant to Sec. 10, TTE will provide the Customer with technical access to the functions contained in the selected product via the internet, in order to use the same in line with the selected plan and these TOU; provided that access is granted without payment during the 30 day trial period; TTE’s right to suspend any access if due fees are not paid remains unaffected. This does not constitute any release or transfer of the products.
    2. The Surwayne dashboard can be accessed on most common web browsers. Up-to-date details can be found on the Surwayne website www.surwayne.com. As a result of the further development of Surwayne, it is possible that use of the products with initially supported older browsers is no longer supported. TTE will endeavour to inform Customer of such changes in a timely manner beforehand.
    3. The connection of the Customer to the Internet, maintenance of the network connection as well as the procurement and provision of hardware and software that is required on Customer's websites does not form a part of the Agreement. It is the sole responsibility of Customer.
    4. If Customer transfers data to TTE – regardless of the form – the Customer will make back-up copies of this data on their own data medium prior to the transfer. In the event that a data loss nevertheless occurs, Customer will transfer the relevant data again to the TTE server at no extra charge.
    5. TTE may also use the services of third-party subcontractors to render its services. In particular, Surwayne is operated in a data processing centre by third parties.
  6. Granting of Rights
    1. As of the time the contract is concluded, TTE grants the Customer, for the duration of the contract, the non-exclusive (simple), non-transferable, non-sublicensable right, which may be offered at no charge or against payment, and which depends on the selected plan, to use the respective products on the central TTE server. The product is not transferred to the Customer. The aforementioned right of use applies in the same way to new versions, updates or upgrades to the products that are provided by TTE during the term of the contract. However, TTE shall not be obliged to make available new versions, upgrades or updates unless this is urgently required for the removal of defects. The Customer shall not be entitled to use, copy, download or make the relevant product available to third parties beyond the purpose of the contract.
    2. If the contractual use of the products is impaired by the proprietary rights of third parties without the fault of TTE, then TTE is entitled to refuse to provide the services thus affected. TTE will immediately notify the Customer and provide suitable access to its data. In that case, the Customer shall not be required to pay for the non-rendered services. Other claims and rights remain unaffected.
    3. The Customer grants TTE a non-exclusive (simple), royalty-free, geographically unrestricted right to use the logo and trademarks of the Customer and/or other uploaded images and text, in particular any customized survey questions and customized improvement suggestions, to the extent required for the performance of its contractual obligations and for the duration of this contract.
    4. The Customer further grants TTE a non-exclusive (simple), royalty-free, geographically unrestricted perpetual and irrevocable right to use any customized survey questions and customized improvement suggestions for the purpose of integrating them into their offering for other or all Customers, including in modified form. For clarity, this particularly includes the creation of effectiveness rankings and similar evaluations of custom improvement suggestions. For further clarity, this does not include use of any information identifying the Customer in such customized survey questions; TTE shall always modify any customized survey questions to remove any such information (such as references to Customer’s name or similar identifying details) prior to using the customized survey questions for any other Customer.
    5. Furthermore, TTE may use the logo and trademarks of the Customer, in particular the company name on the TTE websites (e. g. www.tte.coach or www.surwayne.com), in the products and product brochures and in other publications as a reference. Unless expressly stipulated otherwise in writing the Customer also grants TTE the right, in this context, to enlarge or shrink the logos and/or use colour logos in a black and white version.
  7. Data protection; Confidentiality
    1. The contracting parties mutually undertake to maintain confidentiality with regard to all internal confidential information received by the respective other party. In particular TTE undertakes to maintain confidentiality of all Customer data and other knowledge it obtains during the rendering of its services for the Customer. TTE employees who have access to such data for the purpose of implementing the contract have been committed to confidentiality accordingly. The confidentiality obligation does not apply to information that has been or is disclosed without breach of a non-disclosure obligation or that TTE may or must disclose due to official or court orders; furthermore such information may be forwarded to advisors (e.g. lawyers, tax advisors) of TTE who are committed to professional secrecy. This obligation applies for five years after the end of the contractual relationship between TTE and the Customer.
    2. Agreed data back-ups and back-ups by TTE are only performed for the purpose of data security. TTE is not obliged to delete these back-ups at the end of the contract.
    3. In particular, TTE will keep confidential all company-related and business-related information relating to the Customer and his business partners in accordance with Sec. 7.1 and will not communicate such information to third parties.
    4. The Customer in turn guarantees TTE that its know-how and business relationships will be protected, and that Customer will not inform third parties of the same and use it only for its own purposes.
    5. Both Customer and TTE will comply with the applicable data protection provisions, particularly those that apply in Germany, and will prohibit their employees who have been assigned in connection with the contract from collecting, processing or using personal data without authorisation (obligation to comply with data secrecy).
    6. TTE generally processes Customer's personal data (e.g. the respective e-mail addresses used for the surveys) on behalf of the Customer, who shall retain responsibility in this regard. The TTE contract data processing agreement that is required in this regard ("DPA") can be downloaded here, and has to be printed, signed and returned to TTE. The DPA can also be provided to Customer by TTE upon request from Customer for signature. In general, Customer may only upload/add personal data to TTE if it has duly concluded the DPA. If the Customer uploads personal data before or without concluding a DPA, it thereby guarantees that Customer is authorised to upload the data and permits TTE to use the data as per the contract. Customer indemnifies TTE from all damages and costs (including market-rate lawyer's fees) that are incurred by TTE due to Customer’s breach of the aforementioned obligation and guarantee.
    7. Surwayne is operated in a data processing centre by third parties. TTE may award sub-contracts but is required to impose on the sub-contractor compliance with the data protection provisions that apply in Germany, as well as obligations for the management of the personal user data for the Customer that may have been agreed with Customer.
    8. TTE will take the required technical and organisational security precautions and measures for the protection of personal data. Customer is generally prohibited from demanding access to the premises in which the software application, the servers and operating software, along with other system components developed by TTE, are operated. This does not affect the access rights of the Customer's data protection representative following a written notification to inspect compliance with the required technical and organisational measures under data protection law, as well as TTE's other lawful and contractual handling of personal data in line with the operation of Surwayne.
    9. Further information on the handling of personal data is contained in TTE’s privacy policy. The Customer may contact TTE regarding any privacy matters at any time by e-mailing support@surwayne.com.
  8. Warranty
    1. Within any free trial period Warranty for defects is excluded for use within the free trial period. Sec. 9.1 remains unaffected.
    2. Under a Plan subject to charge

      1. Customer’s warranty rights with respect to any defects in the contractual services are set forth exhaustively in this Sec. 8.2.
      2. A defect is deemed to be present only if suitability for contractual use is eliminated or significantly impaired. Contractual use is conclusively defined by the agreed specifications (if any). In the case that suitability for contractual use is eliminated, the Customer shall be released from paying the remuneration pursuant to Sec. 10 until such time as the defect has been rectified. In the case of partial unsuitability, the remuneration shall be reduced to a reasonable amount for the time until the defect has been rectified.
      3. Customer will immediately notify TTE of defects that have occurred in writing or by e-mail, and will include a description of the defect that is detailed so as to allow TTE to reproduce, analyse and rectify the defect.
      4. The Customer will assist TTE during the rectification of the defect free of charge, and in particular will provide all required documents, data etc. that are required by TTE to analyse and rectify the defect.
      5. If TTE is not able to rectify the defect within a reasonable time period set by the Customer, which must allow for a minimum of three rectification attempts, the Customer may terminate the Agreement for cause.
      6. Customer may claim damages only in accordance with Sec. 9. Strict liability of TTE for initial defects (Sec. 536a para. 1, 1st alternative of the German Civil Code) is hereby excluded.
    3. The Customer shall not be entitled to claims and rights due to defects in the contractual services that go beyond those expressly mentioned in this Sec. 8. This restriction does not apply to the extent that a defect has been maliciously concealed by TTE.
  9. Limitation of liability
    1. During any free trial period With regard to the free use of Surwayne within any free trial period, TTE's liability shall be limited to intent, gross negligence and the lack of explicitly guaranteed characteristics.
    2. Under a Plan subject to charge

      1. TTE shall have unlimited liability for wilful intent, gross negligence, and damages to life, body or health. Liability for the violation of a guarantee explicitly designated as such and contingent liability under the German Product Liability Act (German: “Produkthaftungsgesetz”) also remain unaffected.
      2. In cases of slight negligence other than those described in Section 9.2.1 above, TTE is liable only for breaches of a material contractual duty (Cardinal Duty; German: “Kardinalpflicht”). A Cardinal Duty is a duty the performance of which makes attaining the purpose of the agreement possible in the first place and on performance of which the other party may therefore generally rely. Liability of TTE for a slightly negligent breach of a Cardinal Duty is limited to the foreseeable loss at the time of concluding the Agreement and damages typical for the type of contract.
      3. In case of Sec. 9.2.2, TTE shall not be held liable for lack of economic success, lost profits and/or consequential damages.
      4. In all other cases, TTE is not liable for slight negligence.
      5. Customer is responsible for regularly backing up its data at reasonable intervals (see Sec. 4.2). In the event TTE is liable in principle for any data loss under the provisions above, such liability is limited to the amount that would be necessary for restoring lost data if such reasonable regular backups had been made.
      6. The limitation of liability shall apply accordingly for the benefit of any directors, officers, employees, agents and vicarious agents of TTE.
  10. Remuneration; Invoicing; Payment
    1. No remuneration is charged for any free trial period.
    2. For the remainder, the remuneration for the use of Surwayne is payable in accordance with the payment intervals specific to each Plan. Customer will receive an invoice by e-mail at the beginning of the relevant invoicing period (e.g. month or quarter, depending on selected plan).
    3. Payment may be made using the payment instruments noted on www.surwayne.com. To the extent payment is made upon invoice, Customer shall make the payment no later than 30 days after the receipt of the invoice. Other payment instruments (such as credit cards) are charged immediately.
    4. Customer agrees to receive invoices exclusively by electronic means (PDF format for download within the Customer account, E-Mail, or similar methods).
    5. All prices are net and subject to the applicable statutory VAT.
    6. Customer may set off a claim or assert a right of retention only in the case of legally determined or undisputed counter-claims or counter-claims that form the specific contractual consideration for the claim concerned. The Customer may only assign claims from this contract to third parties with TTE's written approval.
  11. Default
    1. TTE is entitled to suspend access to Surwayne while the Customer is in payment default. In this case, the Customer is still obliged to pay the remuneration. Access will only be reactivated once the Customer has made all owing payments.
    2. All other contractual and statutory rights of TTE in the event of Customer’s default remain unaffected.
  12. Term, extension, termination
    1. The Agreement becomes effective upon TTE’s acceptance of Customer’s registration request.
    2. The initial free Term is a potential free test period. The initial paid term is the duration of the selected Plan; it will be automatically renewed by a period equal to the duration of the selected Plan, unless a party objects to the extension not later than 30 days (for 12-monthly plans) or 15 days (for monthly plans) before the end of the initial Term or the subsequent Term.
    3. For convenience, the free test period ends automatically, no explicit customer termination is necessary.
    4. Moreover, the Agreement may be terminated by either Party without notice in writing for good cause. Good cause that entitles TTE to terminate the Agreement shall exist in particular if the Customer breaches TTE's rights of use by using Surwayne beyond the extent permitted under the selected Plan, and does not cure from the breach following a reminder by TTE within a reasonable time period, or if the Customer fails to pay an invoice despite a reminder with a reasonable deadline.
    5. Terminations must be in writing (e-mail is sufficient) or through the termination functionality within the Customer account.
    6. TTE will deactivate the Customer Account once the termination becomes effective. At that time, Surwayne will no longer be available for use. Stored data will still be stored for a period of two (2) weeks after the end of the contractual relationship, and on request will be made available for download in a common file format within this time period. After that time period, the data may be deleted at any time.
  13. Miscellaneous
    1. This Agreement is governed by German law, excluding the CISG and the conflict of laws principles. Hamburg, Germany, is the exclusive legal venue.
    2. Any modifications to this agreement, including modifications of this written form requirement, must be in writing (e-mail not sufficient) in order to be valid.
    3. In the event individual provisions in these TOU should be or become invalid and/or unenforceable, this shall not affect the validity of the remaining TOU. The Parties will replace the unenforceable provision with a provision that most closely corresponds with the economic purpose of the invalid provision in a legally permissible manner. The preceding provision applies accordingly in case of any gaps.
    4. TTE reserves the right to amend and adapt these TOU with effect for the future. Customer can request the currently applicable version of the TOU via support@surwayne.com. TTE will notify Customer by email no later than one (1) month before new TOU take effect. If Customer does not object to the validity of the new TOU within one (1) month after they take effect, Customer will be deemed to have accepted the new TOU. TTE will inform Customer separately and in suitable form about the significance of the one (1) month’s notice period, Customer’s right to object and the legal consequences of non-objection. This amendment mechanism does not apply to amendments to the Parties' main contractual obligations.

Last updated: December 2016

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