§1 Scope of application

(1) Lamano GmbH & Co. KG (hereinafter referred to as LamaOnline) is the operator of online questionnaire service LamaPoll and provides its assistance in connection with the LamaPoll work, no matter whether uncompensated or compensated, exclusively on the basis of these terms and conditions.

(2) LamaOnline reserves the right to change these terms and conditions in whole or in part at any time.

(3) Other terms, in particular general terms and conditions of clients, are generally not applicable. This also applies if LamaOnline has not explicitly objected.

§2 Scope of services

(1) LamaOnline provides its clients with a service (“LamaPoll”) via the Internet, in order to carry out online questionnaires. This includes the creation of a questionnaire, the sending of invitations and reminder mails, functions for monitoring and control, and the opportunity to analyse the questionnaires. The exact amount results from the service description of the individual offers (https://www.lamapoll.de/Lizenz).

(2) The usage fees for LamaPoll are set out in a separate price list (https://www.lamapoll.de/Lizenz).

(3) LamaOnline itself is a service provider for the LamaPoll service. LamaOnline is not involved in the use of LamaPoll, in particular the creation of questionnaires and analyses, unless contractually established otherwise. LamaOnline only offers clients the opportunity to implement and analyse online questionnaires themselves.

(4) The arrangement of the individual services is at the sole discretion of LamaOnline. The client has no entitlement to influence this, unless agreed otherwise.

(5) LamaOnline has the right to furnish questionnaires with its logo or the LamaPoll logo, and a reference to provider LamaOnline or LamaPoll, if the booked rate does not expressly exclude this (branding-free).

 

§3 Contractual offer, conclusion of contract, contract termination

(1) By registering completely and truthfully on the LamaPoll website and booking a rate, the client is only submitting an offer. The contract will only come about with confirmation from LamaOnline, as a rule electronically.

(2)  If the contract is concluded for a fixed time, the contract will end automatically at the end of this term, without additional notice being necessary. If a minimum contract duration is agreed with the client, the contract shall be extended in each case by the agreed time or minimum duration, if it is not terminated with a notice period of one week until the respective expiry of the fixed time or expiry of the minimum contract duration. An indefinite contract ((as is the case with so-called Flexirates)) can be cancelled by both parties without giving reason with a notice period of 24 hours until the end of the duration time unit.

(3) The contract may be terminated extraordinarily by any contractual partner with immediate effect if there is good reason for this to happen. Good reason for termination by LamaOnline is given in particular if the client violates its duties and obligations in accordance with § 6.

(4) The termination can be carried out in the personal area of the parties’ own LamaPoll account. In this case, it does not have to be in writing. 

(5) After the termination of the contract, the rights of use to the website and the services of LamaOnline shall end immediately; in particular, after the termination LamaOnline is not obliged to send further questionnaires or store and keep available client data for an indefinite period of time. In this respect, LamaOnline is entitled to block the client’s access to the website.

(6) LamaOnline has the right to discontinue services or the scope of functions for which the client pays no usage fees at any time, or change the scope of said services or offer them for a usage fee, at any time without observing a notice period.

 

§4 Withdrawal

(1) Consumers within the meaning of § 13 of the BGB (German Civil Code) have the right to withdraw their offer within two weeks of the conclusion of the contract. The time limit shall be 2 weeks and begins with the coming into effect of the contract. Timely dispatch in writing (email, fax, letter etc.) shall be sufficient for the observance of the deadline, whereby the onus shall lie with the consumer to prove receipt of the withdrawal notice.

(2) If the consumer has already used LamaPoll, e.g. by storing a questionnaire or a participant, or starting a questionnaire, its right of withdrawal shall be expired. In the case of a withdrawal, LamaOnline shall reimburse payments already made without deduction. This also applies if an ongoing questionnaire is based on a booked renewal period.

 

§5 Prices, payment terms, payment default

(1) The client must pay a usage fee for the opportunity to use LamaPoll.

(2) The usage fee includes remuneration for the implementation of questionnaires and the usage rights to certain functions of LamaPoll that are determined in the rate.

(3) The rate models and the additional service features included are set out in the separate service and price specifications (https://www.lamapoll.de/Lizenz). LamaOnline reserves the right to change this pricing at any time at its own discretion.

(4) Settlement of accounts is carried out via invoicing. The fees are payable within 14 days of receipt of invoice and from the date of invoice.

(5) Should the client default on a payment, LamaOnline is entitled to request default interest. In the case of contracts with consumers, this amounts to 5% p.a. above the base interest rate (§ 247 of the BGB), and for contracts with companies 9% p.a. above the base interest rate. LamaOnline reserves the right to assert further claims due to payment default. However, the client is entitled to demonstrate that no or significantly less damages have been caused to LamaOnline as a result of the payment default. The client is only entitled to offset this right if its counterclaim is undisputed or has been established as legally valid. In these cases, the client is authorised to exercise a right of retention if its counterclaim is based on the same contractual relationship.

(6) The invoice will be sent to the client electronically to their email address, to a separate billing email address or, upon request, by post to the client or billing address indicated.

 

§6 Duties and obligations of the user

(1) The client is obliged to only use LamaPoll in accordance with these terms and conditions

(2) The client must ensure that their user account is only accessible to themselves and – for legal persons and public institutions – employees that are necessary for the implementation of the questionnaires. In particular, they must protect their access data and the personal password against access by third parties. The client is solely liable for all damages within the framework of the access and utilisation opportunities, which are caused by authorised or unauthorised use of the services of LamaPoll by third parties.

(3) LamaPoll may not be used to send emails for the purpose of advertising or that are otherwise unsolicited or without any authorisation (so-called “spamming” or “junk mail”).

(4) The client is obliged to only publish content that does not cause public nuisance and is not immoral. They are obliged in particular to create content that is not sexually offensive, racist, radical or misanthropic. 

(a) In this respect, LamaOnline accepts no responsibility at all for the content of the questionnaires and answers of the respondents, or the manner in which the research results are used by the client.
(b) LamaOnline reserves the right to change, block or delete immoral content. This refers in particular to questionnaire titles and subdomains.

(5) The client is obliged to adhere to data protection provisions and other rights of the respondents. The client must ensure in particular that

(a) the respondents are sufficiently precisely informed about the purpose of the questionnaire;
(b) the completion and sending of questionnaires is at the sole discretion of the respondents and, above all, is not connected with disadvantages for them in the case of internal examinations;
(c) personal details of respondents are not stored by the client for longer than necessary, only used for the purpose of the questionnaire and not passed on to third parties or subjected to access by them;
(d) other such general and special rights for the protection of the privacy of the respondents are observed;
(e) in the case of non-anonymous questionnaires, express permission is obtained from participants for their personal details to be stored and the responses to be linked to their persons.

(6) The client is responsible for all consequences and disadvantages to LamaOnline or third parties as a result of improper or unlawful use of the services, which otherwise occur due to the client violating their duties and obligations. This includes in particular the duty to release LamaOnline or hold LamaOnline free from claims for the reimbursement of expenses by third parties and all costs of legal proceedings (court and lawyers’ fees). Other such rights of LamaOnline shall remain unaffected, in particular the right to extraordinary termination of the contract in accordance with § 10 and the right to compensation for further damages.

(7) The client must promptly notify LamaOnline of all changes to relevant details such as address, power of representation and other such occurrences.

(8) Should there be sufficient reason to suspect a violation by the client of their duties and obligations, even temporarily, LamaOnline will be entitled to block the client’s access until the suspicion is ruled out. LamaOnline will inform the client promptly of such a blocking action, indicating the reasons and giving client the opportunity to make representations.

(9) The client agrees with our data protection regulations and the contained obligations for the client. The client declares their willingness to fulfil in particular the obligations in section I.4 of our data protection statement and in the case of questionnaires to inform the participants fully of the protection and handling of their details. Furthermore, express permission from the participants to store their personal details must be obtained by the client.

(10) Should the client pass on personal details of questionnaire participants to LamaPoll (in particular when uploading addresses in the address book of a questionnaire or when requesting personal details in a questionnaire), the client is obliged to report this to LamaOnline and enter into an order data processing contract in accordance with §11 of the BDSG (Federal Data Protection Act) with LamaOnline.

 

§7 Data retention, data protection

(1) The client may delete their questionnaires, addresses and questionnaire results created via LamaPoll, themselves, at any time.

(2) LamaOnline reserves the right to delete all data entered by the client (questionnaires, questionnaire participants, questionnaire results etc.) 90 days after the expiry of the contract with no prior notification.

(3) LamaOnline shall ensure the complete protection of personal details within the meaning of the applicable statutory provisions. This protection shall include both the personal details of the client and those of the questionnaire participants. LamaOnline will in particular use and store personal details exclusively for the purpose of the execution of the contract and not pass them on to third parties.

(4) The client agrees to the client or the company being named two weeks after the conclusion of the contract as a reference client by LamaOnline, in writing and electronically. In the reference list, LamaOnline may use the first name and the first letter of the surname of the client for private persons, and the trading name, company logo and the link to the online presence of the client, for legal persons. Other personal information of the client may only be used as a reference with their explicit permission. The client may revoke this arrangement at any time in writing, whereby the onus shall lie with the client to prove receipt of this revocation.

 

§8 Availability of LamaPoll

(1) LamaPoll is generally offered without interruption. However, for technical reasons constant availability cannot be guaranteed; nor can it be guaranteed that LamaPoll will be free from technical defects, disruptions or restrictions at all times. Operational interruptions for preventative maintenance work will be announced in advance whenever possible. LamaOnline will rectify disruptions to its technical facilities as quickly as possible to the best of its existing technical and operational possibilities.

(2) LamaOnline is not responsible for service delays due to force majeure or events that make the operation of LamaPoll significantly more difficult or impossible (in particular strike, administrative orders, infrastructure overload, breakdown of communication networks of other operators or the subcontractors of LamaOnline or their subcontractors), even in the case of deadlines and time limits agreed as binding. The service obligations of LamaOnline shall cease until the rectification of such a hindrance.

 

§9 Liability and limitation of liability

(1) The liability of LamaOnline and its representatives and vicarious agents is based exclusively on the following provisions.

(2) LamaOnline is liable in accordance with the statutory provisions for damages that are based on intentional or grossly negligent conduct on the part of LamaOnline or that are caused by LamaOnline culpably violating a contractual obligation. The compensation for damages in these cases is limited to foreseeable, typically occurring damages, provided that LamaOnline is not blamed for intentional or grossly negligent conduct.

(3) Otherwise, the liability of LamaOnline for compensation for damages is excluded. This applies in particular for lost profits or other such direct or indirect consequential damages suffered by the client or third parties. This also includes damage to hardware or software of the client or the loss of client data, for instance as a result of viruses; the retrieval of the research results from the website is carried out in this respect at one’s own risk.

(4) Compensation for foreseeable, typically occurring damage in accordance with section (2) is generally provided in the form of free renewed use of the respective services by the client. This applies in particular in the following cases:

(a) creation of technically defective research results due to malfunctions;
(b) incorrect transmission or storage of data by LamaOnline;
(c) failure to carry out a transmission or storage offered by LamaOnline.

(5) In accordance with §8, LamaOnline is not responsible for ensuring that LamaPoll is available and free from technical defects, disruptions and restrictions at all times.

(6) In the case of LamaPoll failure due to a disruption that is outside of the scope of responsibility of LamaOnline, there shall be no reimbursement of fees or other such compensation for damages.

(7) LamaOnline is not responsible for the client being able to reach their intended goal with the use of LamaPoll, and is not responsible in particular if a questionnaire achieves too few results or results that are not useful to the client, because it was not answered by the respondents in the manner envisaged. Furthermore, LamaOnline is not responsible for the use of the research results by the client.

 

§10 Miscellaneous

(1) The law of the Federal Republic of Germany is solely applicable. Should provisions of the general terms and conditions be ineffective, the remaining provisions shall hereby not be affected. The parties will be obliged to replace the invalid provisions with economically equivalent ones.

(2) The place of jurisdiction for both parties is Berlin, provided that the client is an enterprise.

 

 

 


 

 

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