LIMITED USE | END USER LICENSE AGREEMENT
for Free Test Product
IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MUST NOT USE THE PLATFORM.
Description of the UserTesting Platform
UserTesting has developed a software platform (the "Platform") that enables its customers to develop test plans and define audiences ("Tests") in order to solicit feedback on any brand, design, content or offering (the "Purpose"). Each individual participating in a Test (a "Participant") first accepts UserTesting’s Participant Terms and Conditions, which include, among other things, provisions requiring such Participant to keep the contents of each Test they take confidential.
Each Test completed by a Participant (a "Session") shall be recorded (a "Recording") and made available to Customer via the Platform.
Participants are neither employees nor agents of UserTesting but are independent individuals who choose to use the Platform to engage in Tests. UserTesting does not review or control the content of the Screener Responses or Recordings. USERTESTING EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE ACTS OR OMISSIONS OF PARTICIPANTS, OR FOR THE CONTENT OR ACCURACY OF THE SCREENER RESPONSES OR RECORDINGS. CUSTOMER’S USE OR RELIANCE ON THE SCREENER RESPONSES OR RECORDINGS IS AT ITS OWN RISK.
1.0 ACCESS AND USE OF PLATFORM
1.1. Account Registration
To obtain access to the Platform, Customer will be required to register an account. When registering with UserTesting, Customer must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. By registering with UserTesting, Customer agrees that UserTesting may send communications regarding the Platform or Services, including, but not limited to, promotional information and materials regarding UserTesting’s other products and services.
2.0 USE OF PLATFORM
Subject to the terms and conditions of this Agreement, and in its sole discretion, UserTesting grants to Customer a non-exclusive, non-transferrable, right and limited license to access and use the Platform solely for the Purpose and use the Recordings for Customer’s authorized business use.
2.2. Third Party Products
The Platform may include functionality licensed by third parties ("Third Party Products"). Third Party Products may be accessed through the Platform or provided separately. Where a Third Party Product is subject to a separate set of terms and conditions, a copy of or link to such terms and conditions will be incorporated by reference.
Third Party Products, whether or not linked to, or otherwise accessible through the Platform, are provided as a convenience to Customer and not under UserTesting’s control. UserTesting does not make any representations or warranties with respect to any such third-party technology and does not have any responsibility or liability to Customer for Third Party Products and expressly disclaims any warranties for such Third Party Products, express, implied or statutory. Customer agrees to comply with all terms and conditions applicable to the use of Third Party Products.
2.3. Customer Responsibilities
(a) No Reverse Engineering
Customer shall not (and shall not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Platform; or (ii) modify or create derivative works from the Platform, or (iii) introduce into the Platform any virus, worm, “back door,” Trojan Horse, or similar harmful code. If Customer violates this section, UserTesting may immediately deny Customer access to the Platform, or any portion of thereof, without notice or refund.
(b) Platform Usage
Customer shall not do any of the following (each a "Restricted Activity"):
- make the Platform available to anyone other than Users assigned to Seats;
- use the Platform for the benefit of anyone other than Customer;
- sell, resell, license, sublicense, distribute, make available, rent or lease the Platform in a service bureau or outsourcing offering;
- use the Platform in violation of applicable law or regulation, or the Content Policy;
- collect, store or use Recordings or Screener Responses in violation of applicable laws or regulation;
- interfere with or disrupt the integrity or performance of the Platform or any data or information contained therein;
- attempt to gain unauthorized access to the Platform or its related systems or networks;
- permit access to, or use of, the Platform in a way that circumvents a contractual usage limit;
- copy the Platform or any part, feature, function or user interface thereof;
- frame or mirror any part of the Platform, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes;
- communicate with Participants outside of the Platform regarding any activity under this] Agreement;
- access or use the Platform or Participants available through the Platform in order to build or benchmark a product or service competitive to UserTesting.
UserTesting may suspend Customer’s access to the Platform if it determines that Customer has engaged in any Restricted Activity. UserTesting will provide Customer with prompt notice if it suspends a Customer’s access to the Platform pursuant to a Restricted Activity and will restore access as soon as reasonably practicable once the situation is remedied.
Customer understands and agrees that UserTesting may monitor all use of the Platform for security, operational, improvement and performance purposes.
3.0 INTELLECTUAL PROPERTY
3.1. UserTesting Property
"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 an Order,
- Analyses and Promotional Content (as defined below under the heading "License to UserTesting"),
- any modifications, derivative works or updated versions of the foregoing.
All rights, title and interest in UserTesting Property shall remain the exclusive property of UserTesting and/or its licensors. UserTesting Property is the confidential and proprietary property of UserTesting or third parties from whom UserTesting has obtained the appropriate rights. No right or license is granted or implied under any of UserTesting’s, or its licensors’, patents, copyrights, trademarks, trade names, service marks or other intellectual property rights beyond the rights and restrictions set forth in the Agreement.
3.2. Customer Property
"Customer Property" means all material uploaded or inputted into the Platform by Customer.
UserTesting hereby retains all rights, title and interest it holds in the copyright in and to the Recordings.
3.4. License to UserTesting
Subject to the following, Customer hereby grants to UserTesting a temporary, non-exclusive license to use Customer Property solely for the duration and purposes needed to perform UserTesting’s obligations in connection with the Agreement. Customer hereby grants to UserTesting a perpetual, irrevocable, royalty-free, non-exclusive, worldwide license
- to use and incorporate into the Platform or Products, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Platform or Products;
- to use, copy and create derivative works of the Tests, Screener Questions, Screener Responses and Recordings to create the Generated Content, and for UserTesting’s own internal business purposes; and
- analyses using data derived from use of the Platform and Services ("Analyses"); and
- promotional content by using, copying, modifying or distributing portions of Tests, Screener Questions, Screener Responses and Recordings ("Promotional Content")
provided that UserTesting will ensure that such Analyses and Promotional Content will not contain any Customer Confidential Information, or any information that could be used to individually identify Customer and/or any Customer Property
4.0 CONFIDENTIAL INFORMATION AND PII
4.1. Participants’ Personally Identifiable Information
(a) Personally Identifiable Information
Customer acknowledges that the Platform, Products and Tests are not intended to be used by combination, to identify a particular individual ("Personally Identifiable Information" or "PII"). PII shall include "Personal Data" as defined under Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) ("GDPR").
Customer acknowledges that some features of the Platform and Services enable Customer to view a Participant’s face or person ("Face Recording"), which constitutes Personally Identifiable Information. UserTesting will take steps to comply with applicable privacy laws, which may include disclosure of Customer’s name to the Participant. Customer hereby consents to such disclosure to the extent necessary to comply with applicable privacy laws.
(b) Restrictions on Collecting PII
Subject to the foregoing, Customer agrees that it will not require or request any PII from a Participant through the Platform. In the event Customer determines that it has collected PII (either as part of the Tests, Screener Questions, Screener Responses, Recordings, or otherwise) through its use of the Platform, Customer (i) agrees to comply with all applicable privacy laws in connection with such collection, and (ii) advise UserTesting of Customer’s collection of PII. Customer acknowledges that UserTesting will comply with applicable privacy laws with respect to such PII, which may include disclosure of Customer’s name as the owner of the Recording resulting from the Test.
Unless explicitly permitted in writing in an Order, under no circumstances is Customer permitted to request or collect social security or other government disused identification numbers, medical or health-related information, or financial information from Participants through the Platform.
(c) Obligations Regarding PII
UserTesting is the "data controller" under the GDPR with respect to the Tests, Screener Questions, Screener Responses and Recordings.
UserTesting shall not be liable to Customer for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Customer as a result of any breach of privacy laws (including, but not limited to, the GDPR) or any fines, penalties or costs arising therefrom, to the extent caused by the collection, use, or processing of PII collected by Customer in violation of this Agreement.
5.0 WARRANTY DISCLAIMERS
THE PLATFORM IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL USERTESTING BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE PLATFORM OR SERVICES.
6.0 LIMITATION OF LIABILITY AND WAIVER OF CONSEQUENTIAL DAMAGES
IN NO EVENT WILL USERTESTING 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 CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USERTESTING’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO USERTESTING FOR THE USE OF THE PLATFORM OR SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES OR $1,000, WHICHEVER IS GREATER.
7.1 Customer Indemnification Obligations
Customer agrees 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 Customer Property, (ii) violation of any law, regulation or the Content Policy in connection with Customer’s use of the Platform or Product, or information collected by Customer, (including but not limited to Tests, Screener Questions, Screener Responses and Recordings) or (iii) asserted by a third party or Participant as a result of Customer’s collection, use, transfer, or other processing of Participants’ Personally Identifiable Information collected as part of a Tests, Screener Questions, Screener Responses or Recordings.
8.0 GENERAL PROVISIONS
This Agreement will commence when you access our Platform for the Purpose.
UserTesting may suspend Customer’s access to the Platform or Service upon written notice to Customer at any time for any or no reason. UserTesting will not be liable for any loss or damage resulting from the termination or suspension of Customer’s access to the Platform or Services.
Neither party may assign this Agreement without the other party’s prior written consent, except in the event of a merger, acquisition or sale of substantially all of the assigning party’s assets. In the event of a merger, acquisition or sale of substantially all of the assigning party’s assets, the assigning party shall deliver notice to the other party of such assignment. Any attempt to assign this Agreement other than as permitted above will be null and void.
Notice shall be deemed given upon receipt via e-mail, personal delivery, delivery by a nationally recognized overnight delivery service (e.g., FedEx). Notices shall be sent to the following address: UserTesting Legal Department, 660 4th Street #246, San Francisco CA 94107.
8.4. Governing Law
The Agreement shall be governed by and construed under the laws of the State of California 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 United States District Court for the District of Northern California or in the state courts with competent jurisdiction located in San Francisco, California, 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.
By using the Platform, Customer expressly authorizes UserTesting to use the Customer’s name in publicity activities without the need for any additional written consent of the Customer. Customer agrees that UserTesting may also share Customer information with its subsidiaries and affiliates for marketing and other purposes.
8.6. Export Compliance
The Platform and Services may be subject to export laws and regulations of the United States and other jurisdictions. UserTesting and Customer each represents that it is not named on any U.S. government denied-party list. Customer is required to determine if any content, data or information uploaded by Customer is subject to US export control. Customer 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.
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. This Agreement will not be construed to create or imply any partnership, agency, or joint venture. No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power, or remedy. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. 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.
8.8. Entire Agreement
The Agreement constitutes the complete and exclusive agreement between Customer and UserTesting with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. UserTesting expressly objects to any additional or conflicting terms proposed by Customer in a Customer purchase order or otherwise. No Customer form shall modify the terms of the Agreement.
Questions, comments and requests in relation to this Agreement should be sent to email@example.com.