Terms & Conditions - Effortless Customer Feedback Analysis

Terms & Conditions of Use

References in this agreement to “You” and “Your” are references to the person accepting these Terms, references to “We”, “Us” and “Our” are to Essencient Limited trading as Opinyin (a company incorporated in England and Wales with registered number 09890692 whose registered office is situated at 152-160 Kemp House City Road, London, England, EC1V 2NX ) and references to the “Service” are to the Opinyin Online Survey Account, Opinyin Survey Builder, Opinyin Survey Widget and any other component or service We might provide as part of Your Subscription (each a part of the “Service”).

By using this website, registering to use the Service, and using the Service, You agree to be bound by these Terms of Use (the “Terms”) and the arrangements recorded between Us shall form a contract (the “Contract”). If You do not agree to these Terms do not use the Service. If We change these Terms, We will provide You with notice that they have changed within the Service. Your continued use of the Service will confirm Your acceptance.

You understand that You are responsible for all data charges You incur by using the Service.

We may amend these Terms from time to time. Every time You wish to use Our Services online, please check these Terms to ensure You understand the terms which will apply at that time.

These terms and conditions apply notwithstanding any other provisions previously agreed between the parties or stipulated by You (and You irrevocably agree at our request to waive the benefit of any such rights and provisions that may otherwise be conferred on You).

1. The Service

1.1. The Service allows You to create individualized Surveys with one or more questions (each collection of questions being a “Survey”) on any subject and receive responses to these question from people You make the Survey available to.
1.2. The functionality of the Service is limited according to the Subscription level and the parts of the Service You choose (the “Tier”) and pay for.
1.3. We do not impose a limit on the number of responses You may receive when You have subscribed to a Tier. However, excessive usage by a small number of users could adversely impact the service to all Our other customers. All Tiers are subject to the following limits (the “Fair Usage Limits”) to ensure all customers receive a fast and reliable service.

Trial Tier – 100 responses for period or trial
Standard Tier – 1,000 responses/month
Enterprise Tier – 50,000 responses/month

Unless previously agreed by us in writing, if you exceed the Fair Usage Limits, We will contact You with options. If You do not accept the options or you exceed the Fair Usage Limits by more than 20% in any consecutive two months, We reserve the right to suspend Your service. We reserve the right to alter the Fair Usage Limits with 60 days’ notice. If You believe you will exceed the Fair Usage Limits, please contact [email protected] for custom Fair Usage Limits.
1.4. You are solely responsible for all of the content of the Surveys You create using the Service, including, but not limited to the creation, renewal, updating, deletion, editorial content, control and all other aspects of any files, software, scripts, images, graphics, audio, video, text, data, music, sound, photographs, or other objects, Responses to Surveys, information, messages or other materials communicated, submitted or transmitted by You or respondents of Your Surveys through the Service (collectively, the “Client Content").
1.5. You acknowledge and agree that We do not warrant participation in the Surveys or participation rates and that participation rates may vary depending on the ways in which they are promoted, the length of interview, incidence rate, content, placement and audience.
1.6. The results of Your Surveys will be accessible directly on the Service (which may also permit the results to exported). Results to Surveys are stored on the Service and will remain accessible in Your account. If Your account is deleted or suspended data held in it may be removed from the Service backup files within five (5) business days.
1.7. We reserve the right to reject, suspend or remove any part of a Survey where We have reasonable ground to believe that the content of a Survey does not comply with these Terms or any applicable legislation or regulation. We make no guarantee to retain any Survey or other data and You agree that We have no liability to You in respect of the loss of any data.

2. Client Registration and Account

2.1. For the purpose of using the Service, You must register Yourself on the Service and subscribe to an individual account including a login and a password.
2.2. You warrant that all information You provide in Your account registration is current, complete and accurate. Registration data and other information about You are subject to Our Privacy Policy (https://www.opinyin.com/privacy-policy).
2.3. You are solely responsible for the use of Your login and password. You agree to keep Your login information and password private and to notify Us at once of any unauthorized account activity You may be aware of. You acknowledge that You are responsible for Your account and all activities occurring in connection with the use of Your account, whether or not You have authorized such activities.
2.4. Multiple logins and passwords are not provided for. If You share or publish Your login and password details at Your own risk You do so at Your own risk. Opinyin reserves the right to suspend or terminate Your account or future use of the Service at any time, where it has reasonable ground to believe that Your use of the Service does not comply with these Terms or any applicable legislation or regulation, or that Your identification data are not true or accurate or are being pirated.
2.5. We recommend that You keep track of Your Survey results and data as Opinyin reserves the right to deactivate Your account as outlined in these Terms.
2.6. We accept no liability in respect of loss resulting from for deletion of any data that is in Your account.

3. Payment

3.1. The price of the Service shall be the fee quoted to You at registration or via Your account on the Service relative to the Tier You choose. All fees quoted exclude Value Added Tax, sales tax and/or any other required taxes or duties, which shall be applied in addition, if applicable.
3.2. By accepting these Terms You agree (unless You have subscribed for only a no charge service) to pay a monthly subscription fee by debit or credit card (or such other period as agreed in Your order) (“Subscription”) for Your chosen Tier starting on the first day You register and such Subscription shall be payable on the same day of each calendar month (or such other period as agreed in Your order) until You terminate the Subscription. You acknowledge and agree that if Your credit card payment cannot be processed for any reason, We may (without prejudice to Our continuing entitlement to payment) suspend or cancel Your Subscription.
3.3. You are responsible for all charges associated with Your use of the Service as notified in Your account and You agree to pay all such charges, including any applicable taxes, at the rates effective at the time they are incurred. We may change such fees at any time and in Our sole discretion, provided that any such change shall become effective at the end of the period of Your then-current Subscription term.
3.4. Your Subscription shall automatically continue until You cancel it. If You cancel Your Subscription, the cancellation will become effective on the last date of the then current Subscription period. You shall not be entitled to a refund for any unused portion of the Service under any circumstances. Cancellation may be completed through the Service or by sending an email from Your registered email address to [address] expressly asking for Your account to be cancelled (We may seek confirmation of such cancellation and shall not be obliged to give effect to cancellation until confirmation has been received.
3.5. By clicking “Checkout” You agree to be billed each month in the amount notified to You via Your Service account. These fees are payable each month (or such other period as agreed in Your order) using the debit or credit card You provide. For Your convenience, We may store Your encrypted payment information for future orders, however You can manage Your payment information in Your Service account settings.

4. Prohibited Uses

4.1. You shall not access and/or use the Service: (i) to send any communication which it is unlawful for You to send; (ii) to request, process collect, store and/or disclose personally identifiable data from Survey respondents in breach any applicable privacy law; (iii) to communicate any message or material that may reasonably be deemed to be harmful, abusive, harassing, threatening, indecent, obscene, blasphemous, derogatory, discriminatory, hateful, tortuous, libellous, defamatory, slanderous or otherwise upsetting, unsettling, unlawful, distasteful, objectionable or inappropriate given the context and medium in which it is sent, received and interpreted; (iv) in a manner which infringes any patent, trademark, copyright or other intellectual property rights of any third party; (v) in a manner which breaches any applicable laws, rules and regulations; or (vi) in a manner which constitutes or encourages conduct that could be a criminal or civil offence under any applicable law or regulation.

4.2. Although We are not responsible for any Client Content or any of Your communications, We reserve the right to take any action We deem necessary or appropriate at Our sole discretion, with respect to any such content or communications of which We may become aware (or of which We may be suspicious), at any time and without notice to You. You further acknowledge and agree as follows:

4.2.1. We do not control the Client Content and make no representation or warranty regarding its accuracy, integrity or quality.

4.2.2. You may not modify, edit, copy, reproduce, create derivative works of, enhance, reverse engineer, decompile, alter, duplicate or otherwise attempt to decipher any code in connection with the Service or any other aspect of Our technology.

4.2.3. You shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer or the Service.

4.2.4. You shall not use the Service to send surveys, polls, or other materials to individuals under the age of majority (“Minors"), or to harm Minors in any way, and shall not send surveys, polls, or other materials to Minors that may subject Us to any local or international law, rule or regulation (including industry regulations) governing children’s privacy or otherwise related to protecting Minors. This includes, in particular, any research on sensitive issues such as sexuality, drug use, etc.

4.2.5. You may only use the Service for Your own use on and subject to these Terms. You may not assign, transfer, resell, distribute or otherwise make the Service, Your Subscription or any other Service provided by US available to a third party.

4.2.6. You shall not use or present any Survey results in a misleading or illegal manner, or in any manner which would adversely impact upon Our reputation or goodwill, and We reserve the right to publish a correction in the event of such use or presentation.

4.2.7. Survey results cannot be used in connection with any dispute resolution, litigation, arbitration or other legal proceeding of any nature.

4.2.8. Where required by the Tier You choose, You must ensure Our ‘powered by Opinyin’ logo (the “Logo”) is included in the Service. You must not make any attempt to remove, cover, obscure or change the size or position of this Logo nor make any attempt to block or disable the URL link to Our website associated with this Logo. We reserve the right to decide at Our sole discretion on the inclusion, size and position of the Logo.

4.2.9. You shall not access and/or use Service in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Service or any of Our networks or security systems.

4.2.10. You acknowledge and agree that any violation of any of the foregoing will constitute a material breach of the Contract pursuant to these Terms. In such event, We may, in addition to any and all applicable legal and equitable remedies against You, (i) disable Your account and Your access to the Service hereunder; and (ii) recover from You any losses damages, costs or expenses incurred by Us resulting from or arising out of Your non-compliance. You further acknowledge and agree that We may cooperate with any governmental authority in connection with any investigation into Your use of the Service, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any Client Content, and any other information pertaining to You or to Your use of the Service, to such governmental authority in connection with any such investigation.

5. Data Protection in the EEA

5.1. In these Terms the following terms shall have the meanings ascribed to them below:

5.1.1. “GDPR” shall mean the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and any other directly applicable EU legislation relating to privacy and/or data protection;

5.1.2. “data protection legislation” shall mean any legislation relating to privacy and/or data protection as applicable to the processing of personal data under these Terms, including the GDPR and any successor, analogous or equivalent legislation to the GDPR in the United Kingdom or any other part of the world relating to privacy and/or data protection; and

5.1.3. the terms “personal data”, “special categories of personal data”, “data controller”, “process”, “data processor”, “data subject” and “personal data breach” shall have the meaning ascribed to them in the GDPR.

5.2. If You or Your third party processors provide to Us or otherwise input or upload into the Service , personal data about individuals for use in Surveys. You shall obtain all the necessary and appropriate consents required by applicable data protection legislation to enable (i) the lawful transfer of such personal data to Us; and (ii) the use by Us of such personal data, for the duration and purposes contemplated as part of these Services. In respect of the processing of such personal data, if those individuals either reside in the EEA, or You are processing personal data in the EEA, then each party acknowledges and agrees that for the purposes of this Agreement that You are the “data controller" and We are the “data processor” as regards all personal data which is contained in the Client Content.

5.3. In Our capacity as data processor,

5.3.1. We will:

a) put in place appropriate technical and organisational measures to protect against the unauthorised or unlawful processing of the personal data and against accidental loss, destruction and damage;

b) save as otherwise provided in these Terms, We shall not transfer any personal data outside the European Economic Area unless the following conditions are fulfilled: (1) We have provided appropriate safeguards in relation to the transfer; (2) the data subject has enforceable rights and effective legal remedies; (3) We comply with Our obligations under the applicable data protection legislation by providing an adequate level of protection to any personal data that is transferred;

c) notify You on becoming aware of a personal data breach;

d) delete personal data in accordance with the Our Data Retention and Destruction policies or earlier if within a reasonable time of Your written request, unless required by any applicable law to store the personal data.

5.3.2. You shall:

a) process such personal data in accordance with the provisions of the applicable data protection legislation;

b) ensure that You have in place in a prominent position available to any data subject Your current privacy notice with respect to the processing of such data subject’s personal data and which shall be compliant with all applicable data protection legislation (“Privacy Notice”);

c) ensure that any processing of such individuals’ personal data shall be in accordance with the Privacy Notice; and

d) provide Us with any assistance reasonably required by Us in order for Us to comply with its obligations under this section 5.

5.4. In providing Services, We may need to transfer Your personal data and Client Content to computer servers, including the United States and Australia, and any third parties who provide services on Our behalf, including in countries that do not provide the same level of protection for personal information as in the EEA. In any case, We will only transfer personal data to recipients that provide an adequate level of data protection or as permitted by applicable data protection laws.

6. Intellectual Property Rights

6.1. As between You and Us, You shall own all right, title and interest in and to any Client Content.

6.2. During the term of Your Subscription, You grant to Us a limited, non-exclusive, royalty-free license to host the Client Content for all reasonable and necessary purposes contemplated by these Terms.

6.3. These Terms do not transfer to Us or any third party any right, title or interest in or to the Client Content. Instead, We shall have a limited right use the Client Content as is necessary to perform the Services and in accordance with these Terms.

6.4. We, Our affiliates and/or their licensors shall remain the sole and exclusive owners of all intellectual property rights, including without limitation all patents, trademarks, service marks, copyright, database, software, and know how in and to the Service, the Service and any content embedded in the Service and the Services (other than Client Content or content that belongs to other users of the Service) (the “Materials"). You will not acquire any right, title, or interest in or to the Materials or content that belongs to other users of the Service except as expressly set forth in these Terms. We grant You a personal, non-exclusive, non-transferable and revocable right to use the Materials for the sole purpose of using the Service in accordance with the terms of these Terms. The Materials may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without Our or Our licensors, prior written consent.

7. Term and Termination

7.1. These Terms shall automatically become effective upon Your first use of the Service and shall continue until it is terminated in accordance with these Terms.

7.2. You may cancel the Subscription and terminate the Contract by written notice if We materially breach any of Our obligations under these Terms and fail to remedy the breach within 60 days of Our receipt of Your notice of such breach.

7.3. We may terminate this Contract and cancel Your Subscription immediately by notice to You if You breach any of Your representations, warranties, covenants or obligations under these Terms or contravene any applicable law.

7.4. Upon any termination the Contract, Your rights to use the Service shall cease immediately, Your account will be deactivated and We shall have no obligation to retain, forward or make available to You any Client Content. Upon a termination, all rights and duties of the parties toward each other shall cease except those intended to survive such termination (including, but not limited to, Sections 7, 8, 9, 10, 11 and 12).

8. INDEMNIFICATION

8.1 You agree to indemnify Us against all damages and expenses directly or indirectly suffered as a result of Your use of the Service.

9. WARANTIES

9.1 The Service and Service rely on sophisticated and developing algorithms and novel techniques and are only provided on an “as is” basis and no guarantee, representation or warranty is given in relation to the completeness, accuracy or timeliness of their outputs or performance. Use of the Service and Service is entirely at Your risk.

9.2 Except as expressly and specifically provided in this agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law that may be binding on Us are, to the fullest extent permitted by applicable law, excluded from this agreement.

10. LIABILITY

10.1. Subject to clause 10.2, We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement or Your use of the Service; and

10.2. Nothing in this agreement excludes Our liability:

10.2.1. for death or personal injury caused by any negligence by Us;

10.2.2. for Our own fraud or fraudulent misrepresentation; or

10.2.3. to the extent that law provides that any liability may not be excluded.

10.3. We reserve the right to modify or discontinue, temporarily or permanently, the Service, or any features or portions of the Service or the Services, without prior notice. You agree that Opinyin will not be liable for any modification, suspension or discontinuance of the Service, or any part of the Service or any other the Services supplied by Us.

11. Confidentiality/Privacy

11.1. We agree not willingly to publicly disclose Your identity, Your personal data or Your use of the Service without Your prior consent (electronic email or ticking of a box accepted), except to its affiliates and technical partners for the sole needs of furnishing the Service. We shall, however, be permitted to display Your corporate logo in Our marketing materials. We shall not be liable to You if Our services are hacked.

12. Miscellaneous

12.1. We shall have no liability to You under this agreement if We are prevented from or delayed in performing its obligations under this agreement, or from carrying on business, by events beyond Our reasonable control.

12.2. This agreement constitutes the whole agreement between You and Us in relation to the provision of the Service and supersedes any previous agreement between You and Us relating to the same subject matter. You acknowledge and agree that in entering into this agreement You do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

12.3. You may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this agreement. We may assign Our rights or obligations under this agreement.

12.4. Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

12.5. This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

12.6. References in this agreement to “Us”, “We” or “Our” in the context of obligations owed to Us or rights or entitlements conferred on Us shall be deemed to any sub-contractor nominated by Us or any company which is a subsidiary undertaking or a parent undertaking of Ours or any company which is a subsidiary undertaking of any such parent undertaking (“parent undertaking” and “subsidiary undertaking” having the meanings given to them in section 1162 of the Companies Act 2006). The so-called sui generis rule shall not apply to construction of this agreement, so words such as “including” or “include” (and the words following those words) shall not be construed to limit the generality of the words preceding them. References to statutes and laws are to the statues and laws applicable to England and Wales.

12.7. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales, and You irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim relating to these Terms, any Contract or the Services.

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