The following words will have the following specific meanings:
"Account Holder" means any person who has a FeedbackPanda Account;
"Account Holder Data" means any data entered or uploaded by the Account Holder while using the Service.
"person" or "persons" includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality);
"FeedbackPanda" means the "FeedbackPanda" software provided by Panda Software Solutions UG (haftungsbeschränkt), a company registered in Germany (HRB 187680 B)
"FeedbackPanda Account" means a current subscription to the Service;
"the Service" means the Feedbackpanda software which is accessed and used via our password protected website;
Creating a FeedbackPanda Account
In order to access and use the Service, a FeedbackPanda Account must first be created.
An application for a FeedbackPanda Account to be created can be made by submitting details on our "Sign-up" page.
If FeedbackPanda accepts an application for the creation of a FeedbackPanda Account, confirmation will be sent by email and at that point a legally binding contract will be created between the Account Holder and FeedbackPanda.
All applicants must ensure that they are authorised to enter into this contract for and on behalf of the potential Account Holder and the submission of an application constitutes a warranty that the person making the application is so authorised, upon which warranty FeedbackPanda will rely when entering into the contract.
The contract will be concluded in the English language and the provisions of these Terms of Service shall govern the agreement between the Account Holder and FeedbackPanda.
If mistakes were made in the details provided to FeedbackPanda when applying for a FeedbackPanda Account, these errors can be corrected by contacting FeedbackPanda.
Depending on the significance of the error FeedbackPanda reserve the right to terminate or vary the terms of this agreement on receipt of amended details.
FeedbackPanda right to refuse application
FeedbackPanda reserves the right, at its sole discretion, not to accept an application to create a FeedbackPanda Account. This may be due to technical constraints, because the applicant has been banned by FeedbackPanda from using the Service or for any other reason. No charge will be made by FeedbackPanda for declined applications.
An Account Holder will not be able to access and use the Service without a username and password for a FeedbackPanda Account. There are two ways to obtain these:
Once a FeedbackPanda Account has been created, FeedbackPanda will issue the initial user (whose details were provided when the account was applied for) with a username and password.
Additional users can obtain their own usernames and passwords if the user accesses the Service by using their Social Media profile to sign up for a FeedbackPanda account.
Each authorised Account Holder is granted a non-transferable, non-exclusive licence to use the Service in accordance with these Terms of Service.
The above licence is strictly subject to compliance with these Terms of Service by the Account Holder and by all other users of the FeedbackPanda Account held by the Account Holder.
Account Holder obligations
An Account Holder's FeedbackPanda Account may only be accessed by using a password and username which that Account Holder is authorised to use.
An Account Holder must not:
do anything which could reasonably be expected to damage, disable, overburden, or materially impair the Service or the FeedbackPanda website generally or which is likely to interfere with any other party's use or enjoyment of the Service;
question or dispute FeedbackPanda’s ownership of the intellectual property rights in the Service; nor
use the Service if the Account Holder is in competition (or likely or planning to become in competition) with FeedbackPanda or otherwise for the purpose of conducting any benchmarking or comparison with any comparable or competing product.
use the Service for any use that is:
obscene, libellous, blasphemous, defamatory, inciting hatred, terrorism or any similar offence ;
unlawful or misleading;
for any use that breaches third party copyright, including, without limitation, storing or sharing copyrighted music or other copyrighted material that has not been legally obtained;
undertaken on behalf of third parties;
in contravention of any applicable local, state, national and foreign laws, treatises and regulations;
In the event that the Account Holder is in breach of this clause 8.2 or in FeedbackPanda's opinion, reasonably likely to become in breach, FeedbackPanda may suspend the Services forthwith without notice and the Account Holder hereby indemnifies FeedbackPanda in full for any loss or damage suffered by FeedbackPanda as a result of such breach.
The Account Holder is ultimately responsible for administering and safeguarding any passwords created to control access to its FeedbackPanda Account: all password issued must be kept secure.
Subscription fee amount:
A subscription fee for use of the Service is payable monthly by the Account Holder. FeedbackPanda shall issue invoices in respect of the subscription fee and the Account Holder shall pay each invoice submitted to it by FeedbackPanda, in full and in cleared funds, within 30 days of receipt.
The subscription rates are posted on the FeedbackPanda website and these may be varied from time to time: please see the Pricing Page for the rates in force for the current month. Prices on the website are quoted in US Dollars and include VAT, which is also payable. If the subscription package is changed, the change in the subscription payment amount will take effect at the next billing cycle.
Free trials and beta trials:
No charge for use of the Service will be made during any 'free trial' period or any ‘beta trial' period. The Account Holder is not however entitled to benefit from more than one 'free trial' - if more than one 'free trial' has been requested, the Account Holder will become liable for payment of the subscription fee for all use of the Service made after the first 'free trial' period.
Once any 'free trial' or 'beta trial' period is over, FeedbackPanda will automatically renew the Account Holder's subscription and bill every month using the payment details provided to FeedbackPanda, until the FeedbackPanda Account is closed.
FeedbackPanda shall be under no obligation to provide the Service if the subscription fee (plus VAT) is not paid on time. The Account Holder must ensure that FeedbackPanda has complete and accurate billing and contact information throughout the subscription period, including the full name of the Account Holder, its address, and a billing contact email address. If subscription fees become overdue FeedbackPanda reserves the right to
charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis and being compounded weekly until payment is made, whether before or after any judgment; and/or
suspend access to the Service until the balance is paid and/or to close the Account Holder's FeedbackPanda Account permanently.
Our VAT number is: DE312554518
Rights in data:
The Account Holder has sole responsibility for the accuracy and reliability of the Account Holder Data. The Account Holder retains ownership of any copyright, trade marks, database rights and any other intellectual property rights it has in the Account Holder Data. Intellectual property rights in the Account Holder Data will not be transferred to FeedbackPanda. FeedbackPanda reserves the right to disclose Account Holder Data to law enforcement officials in the investigation of fraud or other alleged unlawful activities but otherwise FeedbackPanda will only use the Account Holder Data to provide the Service. Data made available on FeedbackPanda with the intent of sharing it with other FeedbackPanda users may not be licensed in any way. In that case, it may not be set to "shared".
Rights in FeedbackPanda software and the FeedbackPanda website:
All copyright, database rights, trade marks and other intellectual property rights in the Service (including any such rights in the FeedbackPanda website) are either owned by or licensed to FeedbackPanda and nothing in these Terms of Service shall transfer any ownership rights to the Account Holder.
The Account Holder acknowledges that all intellectual property rights in the Service throughout the world belong to FeedbackPanda, that rights in the Service are licensed (not sold) to the Account Holder, and that the Account Holder has no rights in, or to, the Service other than the right to use it in accordance with these Terms of Service.
Termination of a FeedbackPanda Account
Termination by the Account Holder:
the Account Holder can close the FeedbackPanda Account at any time by accessing the Service and using the "Cancel my account" option on the Dashboard page. No further subscription fees will be billed and no refund will be made of any subscription fees already billed and paid.
Termination or Suspension and closure by FeedbackPanda:
If the Account Holder (or any user of the Account Holder's FeedbackPanda Account) fails to abide by these Terms of Service, or if payment of the subscription fees is not paid on time, FeedbackPanda reserves the right to suspend access to the Service or permanently cancel the Account Holder's FeedbackPanda Account. If FeedbackPanda withdraws access to the Service because these Terms of Service have been breached, no refund will be payable by FeedbackPanda. FeedbackPanda also reserves the right to close any FeedbackPanda Account (including during any 'free trial' or 'beta trial' period) for any reason, by giving one months notice.
This section restricts the extent to which FeedbackPanda is liable for any losses which may be suffered in connection with the use of the Service. It also requires the Account Holder to compensate FeedbackPanda for any loss suffered as a result of the Account Holder’s failure to comply with these Terms of Service.
FeedbackPanda gives no guarantee that the Service will be suitable for the Account Holder’s intended use, neither does FeedbackPanda guarantee that it will be error-free, timely, reliable, entirely secure, virus-free or available, especially since FeedbackPanda is dependent on the reliability of the Internet and the Account Holder’s use of computers to access the Service. FeedbackPanda will try to keep disruptions to a minimum but may suspend the Service from time to time to carry out maintenance and support work and to investigate unauthorised use.
Exclusion of liability:
The Account Holder uses the Service entirely at its own risk. FeedbackPanda does not restrict its liability (if any) for personal injury or death resulting from its negligence, or for fraud committed by FeedbackPanda or for any matter which it would be illegal to limit or to attempt to restrict. FeedbackPanda excludes all other liability and responsibility for any amount or kind of loss or damage arising in connection with the Service (even if FeedbackPanda has been advised of their possibility.) In particular, without limitation, in no event shall FeedbackPanda, its affiliates, officers, directors and employees be liable for any indirect, incidental, special or consequential damages (including but not limited to any loss of data, service interruption, computer failure or pecuniary loss) arising out of the use of or inability to use the Service (including but not limited to its content), including any damages resulting therefrom.
Limitation of our liability:
Where FeedbackPanda is not legally entitled to exclude its liability, the maximum aggregate liability for any loss or damage under or in connection with these Terms or relating to the Service (or to the FeedbackPanda website generally) whether in contract, tort (including negligence) or otherwise, shall not exceed an amount equal to 100% of the subscription fees which the Account Holder has paid to FeedbackPanda in the previous year.
Liability to FeedbackPanda:
The Account Holder shall be held liable for any reasonable costs and expenses incurred by FeedbackPanda as a result of breach of these Terms of Service by any person accessing the Service using a password created to control access to the Account Holder's FeedbackPanda Account. Otherwise, the Account Holder shall be liable for any reasonable costs and expenses incurred by FeedbackPanda as a result of breach of these Terms of Service by the Account Holder.
The headings are for convenience only and shall not affect the construction or interpretation of these Terms of Service.
FeedbackPanda reserves the right to change these Terms of Service from time to time and therefore may impose new or different terms and conditions on the use of the Service. These additional terms will be posted on the FeedbackPanda website and will be effective from the Account Holder's next monthly subscription renewal. The continued use of the Service will be deemed to constitute acceptance by the Account Holder of all of the new terms. These Terms of Service may not otherwise be changed without the prior written consent of FeedbackPanda.
FeedbackPanda shall be entitled to transfer its rights and/or obligations under these Terms of Service to another party. The Account Holder may not transfer any of its rights or obligations under these Terms of Service without the prior written consent of FeedbackPanda.
The rights of FeedbackPanda and the Account Holder shall not be prejudiced or restricted by any indulgence or forbearance extended to the other party and no waiver by either party in respect of any breach shall operate as a waiver of any subsequent breach.
If any part of these Terms is found to be invalid or unenforceable for some reason, then it will be replaced with a provision which, as far as possible, achieves the same purpose as the original, and the remainder of the agreement will still be binding.
A person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 ("the Act") to enforce any term of this agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
These Terms of Service shall be governed by and interpreted in accordance with the law of Germany. The courts of Germany shall have non-exclusive jurisdiction over any claim, dispute or difference which may arise out of, or in connection with, these Terms (including without limitation claims for set-off or counterclaim) and the legal relationships established by these Terms. The Account Holder is responsible for compliance with any applicable laws of the country from which the Account Holder uses or otherwise accesses the Service.