These terms of service (“the Terms of Service”) govern the contractual relationship between Problem Free Limited (“Problem Free”), the creator of kwiksurveys.com, freeonlinesurveys.com and shout.com, and the user (“you or your”) of kwiksurveys.com, freeonlinesurveys.com or shout.com (“the Site”), including any of the services provided therein (“the Services”).
2 - Permission
You may only use the Site or Services if you are a 16 year old human being, or according to the legislation of your own governmeent. No robots allowed!
3 - Changes to this Agreement
Problem Free reserves the right to change or update the Terms of Service at any time by publishing the revised version in place of these terms. Should the user not be willing to accept the revised Terms of Service the user’s sole remedy is to stop using the Site and Services.
4 - Changes to the Services
Problem Free may, at their sole discretion, without notice, change any aspect of, or the way that we provide, the Services, or even stop them. We can also terminate or restrict access to any given user or group of users, at any time. Certain obligations accruing before any such termination shall not be extinguished as a result of termination.
Problem Free reserves the right to change, update, limit or terminate any or all of the Services or certain features from time to time. Any change to the Services may be reflected in the subscription cost of the level of services offered. Any changes, update, upgrade, limitation or termination of the Services shall be notified to you upon it becoming into effect.
5 - Email Registration, Account Security
By creating an account on the Site, you hereby agree that you are solely responsible for maintaining the confidentiality of the password(s) associated with your account. You agree that you will not directly or indirectly allow any third party access to your account details and that you will be solely responsible for all activities and transactions that take place under your account and for any and all use or misuse of your password or account.
If you become aware of any unauthorized use of your account, you agree to notify Problem Free. You are fully responsible for all actions that occur under your account or in connection with your account. You agree not to use your account in any unlawful, misleading or fraudulent manner.
6 - Payments and Payment Security
Subscription fees are generally taken in advance of the services being provided, on a rolling month basis, however in the event that this does not occur, you agree to pay all subscriptions accruing. Fees paid by you are non-refundable except as provided in these terms or when required by law. Subscription payments are taken in advance for the recurring term you have chosen, such as monthly or annually. The Term of each subscription is automatically renewed at the end of the subscription term, without notice.
Payments are taken automatically from your registered billing information at least 48 hours before the start of your next subscription term. You may cancel the automatic renewal of your subscription at any time. No refund shall be given for the remainder of the current subscription term, however you will be able to continue use of the Services under your subscription package, until the end of your subscription term. Fees are subject to change from time to time, however any such change will only become effective upon the renewal of your subscription term.
We shall endeavour to email you if any change in your subscription price is to become effective. If you decide to upgrade your subscription at any time, from a cheaper subscription to a more expensive one, midway through a current subscription term, we will apply a pro-rated refund on your account for the remaining term of your lower subscription and apply the new subscription rate to the remainder of your current term. Once your subscription renews, the full upgrade price shall apply.
If you decide to downgrade your subscription, from a more expensive subscription to a cheaper one, midway through a current subscription term, we will refund the difference in the cost and apply it to any renewed subscription cost. If you downgrade midway through a subscription term and then cancel your subscription before the next renewal term, any refund credit to be applied to your next subscription term shall be forfeited. If you downgrade to a free subscription, this is taken as a cancellation and no refund shall becoming owing.
If you are nervous about shopping on the web, don’t be. Problem Free and its payment gateway partners use secure servers with state-of-the-art encryption and secure sockets layer (SSL) technology for the transfer of credit card information. Additionally, we have security measures in place to protect our customer database and access to this database is restricted internally.
7 - Third Party Interference and Damage to Access Devices
Although Problem Free has security measures in place, you hereby accept that Problem Free are not responsible for any third party interference with the Site. This includes any access to your account details by third parties, any software implemented into the website that causes any damage to the device used to access the site or anything that causes any damage to you whatsoever caused by third party interference.
You hereby agree that you are responsible for the devices you use to access the Site and its compatibility required to access the site. Problem Free cannot be held responsible for any bug or improper use of equipment used to access the Site whether through a web browser or device application.
8 - Use Policy
The User shall not use the Site or the Services for any unlawful or inappropriate purpose. Strictly prohibited actions include transmitting material:
that is unlawful, abusive, profane, obscene, vulgar, defamatory, pornographic, threatening, invasive of publicity or privacy rights, or otherwise objectionable;
that violates or infringes upon the rights of others in any way;
that contains any viruses, worms, malware, Trojan horses or other harmful or destructive content;
that encourages others to commit unlawful acts;
that tests, scans or tests our servers or systems;
that is used to break or circumvent any technology, hardware or software we have in place for security of authentication;
that breaches any other party’s Intellectual Property;
that contains publicity, advertising, or solicitation for goods or services that did not receive prior approval from Problem Free; and/or
that prevents other users from using and enjoying the Site.
non-compliance with the law and best practices of the Children’s Online Privacy Protection Act (“COPPA”) and Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”).
Problem Free does not and cannot review all content and material posted on the Site or in surveys and emails through its mass email marketing services. As such, Problem Free cannot accept responsibility or liability for any material posted by its users. Problem Free reserves the right to remove or alter any user’s content or material posted or used as part of the Services for any reason, at its own discretion.
9 - Spam, Survey Misuse and E-mail Marketing
The Services are a great way to build leads, interact with clients and collect user information through the use of surveys and email marketing. However, Problem Free does not tolerate the use of its Services to facilitate Spam, misleading, unsolicited or fraudulent use of its marketing Services. You must also adhere to email marketing laws to the regions you operate in. Further, you must also adhere to the obligations of CAN-SPAM and EU Directive 2002/58/EC. Problem Free takes no responsibility for your interpretation of the respective laws. If you ask for users email addresses and/or use them for your marketing campaign you must adhere to the following:
Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify you;
Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message;
Only send a reasonable amount of marketing emails in any period of time;
Identify the message as an ad if it is one;
Tell recipients where you’re located. Your message must include your valid physical postal address;
Tell survey takers why you are asking for their email addresses;
You may not use the Services for Phishing or otherwise stealing users details.
Tell recipients how to opt out of receiving future email from you;
Honour opt-out requests within 10 days; Problem Free actively monitors the uploading of large email lists and emails being broadcast to large numbers of subscribers. In order to have some element of control against suspected spam, we limit single data uploads to 10,000 email addresses. Problem Free will not allow their surveys or email broadcast system to be used in conjunction with email lists which have been rented, purchased or harvested by any means. If you do not have proof that you have collected the email addresses in your list, please do not upload them. Problem Free reserves the right to request such proof. Non production of proof may lead to the user account being terminated. You are responsible for ensuring that the email messages you send in connection with your surveys do not generate a number of spam complaints in excess of industry standards. Any accounts attracting an unreasonable amount of spam complaints shall be suspended or terminated. If you breach this clause you shall be immediately banned by Problem Free from the Site and Services. Once survey takers have given their email addresses to our survey creators, Problem Free has no control over what they do with that data. Problem Free, also, does not have control over what is included in the emails sent using our email marketing Services. Problem Free cannot therefore be responsible for users breaching these email marketing rules. However, if you receive an email(s) that breach this clause, please contact us at [email protected]
10 - Ownership, Copyright and Trade-marks
You agree and acknowledge that we own or are licensed to use all copyright, database rights, trade marks and other intellectual property rights in and to all parts of the Site, and to the business of Problem Free, including the structure, design, essence and layout of the Site and any text placed in it. You are entitled to use the Site in accordance with these Terms and Service only. You must obtain our prior written consent before you use the Site or any part of it in any other manner than herein prescribed. All persons, individual and corporate, are prohibited from providing hypertext or other links to the Site, other than to our home page, from their own web site or from a third party’s web site, without our prior written consent.
If any third party believes that material placed on the Site or in any of the emails or surveys created by our users infringes on your copyright, you should contact us immediately. We deal with any copyright infringement in accordance with the Designs, Patents and Copyright Act 1988 and as such, upon investigation we shall respond by either removing material, disabling links or restricting a user’s account. As we cannot be responsible for all of our user’s content, we cannot be held liable for any infringement of copyright.
11 - Termination
Problem Free reserves the right to terminate, suspend or restrict a user’s account for breach of any term in these Terms of Service. In the event a user’s account is terminated, suspended or restricted, the user shall not be entitled to a refund for any remaining subscription fees already paid. Problem Free reserves the right to terminate, suspend or restrict a user’s account for any reason at its own discretion.
12 - Intellectual Property
By using the services, any copyright you own of any material used or posted on the Site shall remain your property. Problem Free shall retain the copyright of all other material on the Site. By using or posting content to Problem Free, you shall agree to give Problem Free non-exclusive worldwide, royalty-free and transferable license to all past, present and future copyright of that material.
Problem Free may use the material and utilize the copyright in any past, present or future medium available. You represent that you hold all necessary rights in the material to give this license. The licence shall be unlimited and by supplying this content you shall agree to use of your material in this way. This license remain effective until you delete it, except for comments. In the event that you delete any material, you agree that Problem Free may retain, but not display or distribute your Content. Problem Free grants you a non-exclusive, worldwide, non-transferable licence to download, store, display, edit and redistribute your content solely in the connection with your use of the Services.
13 - Liability
Problem Free, its suppliers, directors, employees, licensors or agents shall not be liable with respect to any subject matter of these Terms of Service, or any use by any party of the Site and Services, under any form or causes of action including contract, tort, strict liability or in any other action or dispute, except where such liability is prohibited by law, for:
General, special, incidental or consequential damages;
For interruption of the Services or loss of data;
For any amount exceeding the fees paid for Services during a 12 month period;
For any failure or delay for any reason beyond Problem Free’s control.
14 - Disclaimer as to the Products and Services
The Site and the Services are provided “as is” and Problem Free, its directors, employees, contractors, licensors and partners (“the Warrantor Parties”) disclaim all warranties with regard to this Site or Services including all implied warranties of merchantability, fitness for purpose and non-infringement. The Warrantor Parties make no warranty that the Site will be error free or that access thereto will be continuous or uninterrupted. You use the Site and Services at your own risk.
15 - The Site and Data Retention
Problem Free shall endeavour to keep the site and its servers operational 24 hours a day, 365 days per week, however we make no warranty to do so as Server and Site interruption may be the result of external factors outside of the control of Problem Free. As a result Problem Free shall not be responsible for any loss caused to your business because of server or Site downtime. Problem Free shall store the data that you collect from users partaking in your surveys and uploaded to the Site. In the unlikely event that something goes wrong and any data is lost Problem Free shall not be responsible for any damage to you or any third party as a result. You hereby warrant that you understand that the storage of your data is not 100% secure and that you shall hold Problem Free harmless from liability.
16 - Indemnification
The user agrees to indemnify, defend and hold harmless Problem Free, its affiliates and their respective advertisers, agents, licensors, suppliers, officers, directors, shareholders, employees, agents, service providers and other contractors (collectively “Problem Free Indemnified Parties”) from and against any loss, expense, damage, cost, liability, claim, demand made by a third party, including, but not limited to, reasonable legal fees and accounting expenses, sustained, incurred or paid by the Problem Free Indemnified Parties and arising from or related to:
Uploading email lists;
The access or use of the Site and Services by you (or any users of your account), including, without limitation, your or others’ access to Site Content or any content or other materials available by means of third-party websites;
Violation of these Terms of Service or breach of the Terms of Service (including, without limitation, any representation or warranty contained in this Agreement) or any activity related to your use of the Site; or
Your content or provision to the Site of information or any other products, postings, offerings, data or materials. You will assist and co-operate as fully as reasonably required by the Problem Free Indemnified Parties. The Problem Free Indemnified Parties will have the right, but not the obligation, to participate through counsel of their choice of any defense by you or any claim as to which you are required to defend, indemnify or hold harmless the Problem Free Indemnified Parties (the “Indemnified Claim”). You may not settle any Indemnified Claim without the prior written consent of the concerned Problem Free Indemnified Parties.
17 - Errors on the Site
Although Problem Free strives to provide reliable and current information through the Site, occasionally, there may be information on the Site that contains typographical errors, inaccuracies, omissions or mistakes that may relate to product descriptions, pricing, promotions, offers, and availability. Accordingly, we reserve the right to correct any errors, inaccuracies or omissions and to change or update information or to refuse, correct or cancel orders, at any time and from time to time without liability and without notice to you or any other person, if any information on the Site is inaccurate, to the extent permitted by law.
18 - Miscellaneous
These Terms of Service shall be interpreted and construed according to, and governed by, the substantive laws of England & Wales, excluding any such laws that might direct the application of the laws of another jurisdiction. You understand that these Terms of Service represent the entire understanding and constitute the entire agreement between the parties in relation to its subject matter, and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee or representative of either of the parties.
If any part of these Terms of Service is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining terms will remain in full force and in effect. A waiver by either party of any term or condition of these Terms or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Problem Free may assign their rights under these Terms of Service without limitation. You may assign your rights to any party as long as they agree to be bound by these Terms of Service also. These Terms of Service shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. Any headings used in the Terms of Service are for convenience only.