UserTesting Education Partner Program Agreement
PLEASE READ THIS EDUCATION PARTNER AGREEMENT CAREFULLY.
This is a contract between you (the Education Partner) and us (UserTesting). It describes how we will work together and other aspects of our business relationship. These terms are so important though that we cannot have you participate in our Education Partner Program unless you agree to them. By participating in our Education Partner Program, you are agreeing to these terms.
"Agreement" means this Education Partner Program Agreement and all materials referred to or linked to in here.
"Platform" means our web-based platform that we may make available to you, and are developed, operated, and maintained by us, accessible via https://usertesting.com or another designated URL, and any ancillary products and services, that we provide to you for your use in accordance with the terms of this Agreement.
"UserTesting Property" means the Platform and Services, any UserTesting products or other offerings, any pre-existing intellectual property and related rights of UserTesting that are used in performance of UserTesting’s obligations under this Agreement, and any modifications, derivative works or updated versions of the foregoing.
"Customer Terms and Conditions" means those terms and conditions located at https://www.usertesting.com/terms-of-use-enterprise-client, as modified from time to time.
"Education Partner Program Benefits" means the benefits made available to partners which we have described at https://www.usertesting.com/education-partner-agreement/, or another website we may designate.
"Education Partner Program" means our partner program as described in this Agreement. "End User" means the authorized actual user of the Platform, which may include students enrolled in educational programs with Partner.
"Education Partner Property" means all material uploaded or inputted into the Platform by you.
"University Content" all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our UserTesting University certification, resources and make available to you under this Agreement, and accessed at http://university.usertesting.com/.
"We", "us", "our", and "UserTesting" means User Testing, Inc.
"You" and "Partner" means the party, other than UserTesting, entering into this Agreement and participating in the Education Partner Program. For the Education Partner Program, this means the School that applied to participate in the Education Partner Program.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in the same or similar capacity.
3. Partner Acceptance, Rights and Obligations
a. Partner Acceptance. Once you complete an application to become an Education Partner, we will review your application and notify you have been accepted to participate in the Education Partner Program, or not. If you are accepted to participate in the Education Partner Program, then upon notification of acceptance the terms and conditions of this Agreement shall apply in full force and effect, until terminated pursuant to the terms set forth below.
b. Partner Rights and Obligations. We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to use, demonstrate and promote the Platform solely in an educational environment, like a classroom setting, where the main purpose is to benefit the student.
You may not resell, lease, rent or otherwise use the Platform for profit, provided that the foregoing will not restrict you from charging tuition fees generally, which tuition fees would apply regardless of the inclusion of the University Content, Product or Platform in your curriculum. You may also not include the University Content, Product or Platform in materials that are going to be distributed outside of your classroom or organization (for example, for inclusion in a published book), without our express prior written consent. You may not alter the appearance of the University Content, Product or Platform or remove our name or logo. "Whitelabeling" is strictly prohibited. We determine the version of the Product, Platform and Services that we make available to you under this Agreement, and there is certain content that may not be accessible by you unless you are a customer of ours or pay a fee.
You agree to abide by the UserTesting University Terms, and to instruct students to do the same. You will take all reasonable steps to ensure that students do not use the University Content, Platform, Services or Product in violation of the Agreement or the Customer Terms. If you discover or have reason to believe that any student is making use of the University Content, Product, Platform or Services in violation of the Agreement or Customer Terms, then you will immediately notify us in writing.
4. Partner Support
We will make the University Content, Platform, Product or Services available to you without charge (unless we otherwise agree in writing), subject to the terms set forth in the ‘Partner Rights and Obligations’ section and any Order Form/SOW. We will make available to you those benefits as indicated in this Agreement and any other mutual agreement in writing, which we may change from time-to-time without notice to you.
The Customer Terms and Conditions apply to your use of the Platform and it will be considered “Free Services” which means the Product or Services or other products or features made available by us to you on an unpaid trial or free basis. As indicated in the Customer Terms and Conditions, you will comply with our Content Policy at https://www.usertesting.com/content-policy with respect to your use of the Platform. We reserve the right to suspend, modify, or discontinue any or all part of the Platform at any time without prior notice to you. In the event of a conflict between the terms that apply to the Platform as specified in this Agreement and the Customer Terms and Conditions, the terms of this Agreement shall control.
5. No Fees
No fees, commissions or other payments will be due or payable under this Agreement. Each party is responsible for its own costs and expenses related to this Agreement.
6. Trademarks and Press Release
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos ("Partner Marks") in connection with the Education Partner Program and this Agreement.
During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Education Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
If you are accepted as an Education Partner and would like to issue a press release announcing your partner status, you may do so upon our prior written consent. To seek to obtain this written consent, you should send a copy of your draft press release to email@example.com.
7. Proprietary Rights
Subject to the terms and conditions of this Agreement, we grant to you a non-exclusive, non-transferrable, right and limited license to access and use the Platform during the Term solely for educational purposes related to UX research for End Users who are students and teachers affiliated with the Education Partner. The University Content, the Platform and the UserTesting products and services are protected by intellectual property laws. The University Content, the Platform and the UserTesting products and services belong to and are the property of us or our licensors (if any). We retain all ownership rights in the University Content, the Platform and any other UserTesting products and services. UserTesting, the UserTesting logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers and partners to comment on the Platform and/or other UserTesting products and services, and provide suggestions for improving them. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Platform or other UserTesting products and services, without payment to you.
As used herein, “Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) UserTesting customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
9. Term and Termination
a. Term. This Agreement will apply for as long as you participate in the Education Partner Program, until terminated or as otherwise included in the application process.
b. Termination Without Cause. Both you and we may terminate this Agreement on thirty (30) days written notice to the other party.
c. Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iii) immediately, if you or any of your students who use the University Content, Platform or other UserTesting products and services violate the Customer Terms and Conditions or this Agreement, (iv) immediately, if you violate any applicable local, state, federal, or foreign laws or regulations, or (v) immediately, if you breach the terms applicable to your subscription with us as paying Customer (if you have one), including if you default on your payment obligations to us, (vi) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers, (vii) immediately,if you take part in any Restricted Activities as defined in the Customer Terms and Conditions, (vii) immediately, if you breach the DPA or Content Policy as incorporated through the Customer Terms and Conditions
d. Effects of Expiration/Termination. Upon termination or expiration of the Education Partner Program, you will discontinue all use of the Platform and will immediately discontinue all use of our trademark, including any UserTesting badges or logos, if applicable. Termination or expiration of this Agreement shall not cause your paid subscription to be terminated, if you have one.
10. Partner Representations and Warranties
You represent and warrant that: (i) your participation in this Education Partner Program will not conflict with any of your existing agreements or arrangements; and (ii) you own or have sufficient rights to use and to grant to us our right to use the Partner Marks.
You agree to indemnify, defend and hold UserTesting harmless against any claims, causes of action, damages, judgments, settlements, and/or costs (i) arising out of or related to any UserTesting Property, (ii) violation of any law, regulation or the Content Policy in connection with your use of the Platform or Product, or information collected by you, (including but not limited to Tests, Recordings and Generated Content) or (iii) asserted by a third party or Participant as a result of your collection, use, transfer, or other processing of Participants’ Personally Identifiable Information collected as part of a Tests, or Recordings.
Further, you agree to indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Education Partner Program, (b) your noncompliance with or breach of this Agreement, (c) you or your End User’s use of the Academic Portal, or (d) our use of the Partner Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
12. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. USERTESTING EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE PLATFORM, THE UNIVERSITY CONTENT, THE UNIVERSITY PARTNERSHIP PROGRAM, THE TESTS OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
NONE OF USERTESTING, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE "USERTESTING PARTIES") ENDORSE ANY PARTICIPANT, TEST, SCREENER RESPONSE OR RECORDING (INCLUDING, WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED BY ANY PARTICIPANT). UNIVERSITY PARTNER IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.
b. Limitation of Liability and Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR USERTESTING’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, INCLUDING ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ITS PERFORMANCE OR NONPERFORMANCE, SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500.00).
You agree not to intentionally solicit for employment any of our employees, Participants or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
a. Amendment; No Waiver. We may update and change any part or all of this Agreement. If we update or change this Agreement, the updated Agreement will be posted at https://www.usertesting.com/education-partner-agreement. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.
If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate ten (10) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Applicable Law. The Agreement shall be governed by and construed under the laws of the State of Delaware without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties hereby submit to the exclusive jurisdiction and venue in the Federal courts in Delaware or in the state courts with competent jurisdiction located in Delaware, and agree to have any action or proceeding between the parties or their successors, or upon, concerning, or related to this Agreement, heard by a judge of such courts. Accordingly, the parties waive their right to trial by jury in any such action or proceeding.
c. Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises. The Party which has suffered such delay shall promptly notify, but no more than ten (10) calendar days, the other Party of the circumstances thereof.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
f. Compliance with Applicable Laws. You shall comply with all applicable foreign and domestic laws (including without limitation export laws), governmental regulations, ordinances, and judicial administrative orders. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the University Content and the UserTesting products and services. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the University Content or the UserTesting products and services to prohibited countries or individuals or permit use of the University Content or the UserTesting products and services by prohibited countries or individuals. The Platform and Services may be subject to export laws and regulations of the United States and other jurisdictions. UserTesting and Education Partner each represents that it is not named on any U.S. government denied-party list. Education Partner is required to determine if any content, data or information uploaded by Education Partner is subject to US export control. Education Partner will not (i) permit any User to access or use the Platform in a U.S.-embargoed country or region, or (ii) otherwise access or use the Platform or upload any content, data or other information in violation of any U.S. export law or regulation
g. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt. To User Testing, Inc.: User Testing, Inc., 144 Townsend Street, San Francisco, CA 94107, U.S.A. Attention: General Counsel
To you: your address as provided in our partner account information for you. We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
i. Entire Agreement. This Agreement is the entire agreement between us for the Education Partner Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
j. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l. Program Benefits. We may change the Education Partner Program Benefits from time to time by updating our website.
m. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the UserTesting products and services, our trademarks, or any other property or right of ours.
n. Sales by UserTesting. This Agreement shall in no way limit our right to make available or sell the University Content or the UserTesting products and services, directly or indirectly, to any current or prospective customers.
o. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
p. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Proprietary Rights', 'Confidentiality', 'Effects of Termination/Expiration', 'Indemnification', 'Disclaimers; Limitation of Liability', 'Non-Solicitation' and 'General'.