BY USING OR OTHERWISE ACCESSING THE SOFTWARE AND/OR DOCUMENTS, YOU AGREE TO THE TERMS OF SERVICE HEREUNDER WHICH WILL BIND YOU (AND YOUR EMPLOYEES, IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF AN ORGANIZATION). IF YOU ARE ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS OF SERVICE, AND THAT SUCH ENTITY SHALL BE SO BOUND. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ANY OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SOFTWARE AND DOCUMENTS. WE MAY UPDATE THESE TERMS OF SERVICE IN OUR DISCRETION FROM TIME TO TIME, AND YOUR ACCEPTANCE OF SUCH UPDATED TERMS OF SERVICE SHALL BE DEEMED THROUGH YOUR CONTINUED ACCESS TO OR USE OF THE SOFTWARE OR DOCUMENTS.
For purposes of the terms of service set forth hereunder (this “Licence”), “UserZoom”, “us” or “we” shall mean either: (a) User Zoom, Inc., a California corporation with offices at 1801 Broadway, Suite 720, Denver, CO 80202, if you (“Licensee” or “you”) are a resident of a country located in North America (including Mexico), Central America, South America or the Caribbean; (b) UserZoom Limited, a company incorporated and registered in England and Wales with company number 06984058 whose registered office is at Unit 11, Royal Mills, Redhill Street, Manchester M4 5BA, if you are a resident of a country located in Europe (excluding Austria, France, Germany, Spain or Switzerland), the Middle East, Africa, Asia or the Pacific region; (c) UserZoom Technologies Inc. Sucursal in Espana, a Spanish branch company ("UserZoom SL"), if you are a resident of Spain; (d) UserZoom GmbH if you are a resident of Austria, Germany or Switzerland; or (e) Panisero SAS if you are a resident of France.
This Licence is a legal agreement between you and us relating to your use of: (i) the UserZoom Software-as-a- Service usability testing platform and related services (“Software”), which may be accessed via UserZoom’s website at https://www.userzoom.com, https://go.userzoom.com, https://getenjoyhq.com or https://www.testapic.com, as applicable; and (ii) any and all documentation (including without limitation, materials in electronic or printed format) made available to you by UserZoom relating to the Software (“Documents”).
1. GRANT AND SCOPE OF LICENCE
1.1 Subject to UserZoom’s receipt of payment from you or an authorized reseller or agency acting on your behalf of the applicable licence fee (if any) and your access to the Software from a computer system meeting the applicable system requirements made available by UserZoom (if any), we grant to you a non-exclusive, non-transferable licence to use the Software and the Documents subject to and in accordance with the terms and conditions of this Licence. Notwithstanding anything to the contrary herein, your usage of the Services shall at all times be subject to the UserZoom Fair Usage Policy found at https://www.userzoom.com/fair-usage-policy/.
1.2 You may:
(a) access and use the Software solely for your internal business purposes relating to usability research and testing in accordance with the relevant Documents: (i) use the user login credentials provisioned for you; or (ii) if the Licence is a multi-user or workgroup licence, subject to and in accordance with the number of concurrent users agreed in the relevant order form; and
(b) use any Documents solely in support of the use of the Software and make copies of the Documents as are reasonably necessary for their lawful use.
2. USAGE RESTRICTIONS & YOUR OBLIGATIONS
2.1 You agree to keep all login credential(s) issued to you and/or your organization, as applicable, safe and confidential. Additionally, in relation to the Software and Documents, except as expressly set out in this Licence or as permitted by any local law, you undertake not to: i) “frame,” distribute, resell, or permit access to the Software by any third party other than to invite participants to participate in studies in accordance with the Documents; (ii) permit multiple users access using shared login credentials; (iii) permit use other than in compliance with this License and applicable laws (including data protection laws); (iv) reverse engineer, attempt to gain unauthorized access or attempt to discover the underlying source code or structure; (v) submit any content or data that is false, defamatory, illegal or violates a third party’s rights; (vi) submit any routine, device or other undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, system or service; (vii) use spiders, robots or other automated data exploration techniques to catalog, download, store or in any way reproduce or distribute the content offered via the Testapic website identified herein; or (viii) collect or attempt to collect, or otherwise solicit through the Software and/or use thereof, any personal data that may be of a “sensitive” nature or otherwise regulated by data specific privacy laws or subject to special processing restrictions or requirements, including without limitation: bank account or card information, credit information, social security numbers or other government-issued identification numbers or information, protected health information (e.g. under HIPAA), educational records or information (e.g. under FERPA) and any other information regulated by GLBA, FCRA or COPPA (the foregoing, “Prohibited Personal Information”), and if you discover that any Prohibited Personal Information has been submitted to the Software, you will immediately notify us of such disclosure, and upon our receipt of such notification, you shall promptly work together and cooperate in good faith with us to comply with applicable data protection legislation with respect to such information.
2.2. UserZoom monitors all use of the Software for security, operational, product improvement and product performance purposes. UserZoom may temporarily suspend access to the Software in the event that: (i) a user is engaged in, or UserZoom in good faith suspects that such user is engaged in any unauthorized conduct; or (ii) there has been unauthorized access to such user’s account. UserZoom will provide Customer with prompt notice if it suspends access and will restore access as soon as reasonably practicable once the situation is remedied.
2.3. The Software includes a feature that allows you to download your study data during the applicable subscription term. For your convenience, we will retain your study data for: (a) ninety (90) days in relation to the UserZoom or Testapic platform; or (b) up to 30 days in relation to the UserZoom Go platform; (c) up to 2 months in relation to the EnjoyHQ platform (please refer to https://documentation.getenjoyhq.com/article/oz7xmflphv-data-storage-retention); or, after the expiration or earlier termination of your relevant subscription term (the “Retention Period”) and, if requested by you in writing during this Retention Period, will make your study data available for download by you. Upon the conclusion of the Retention Period (or if requested by you earlier, during the Retention Period), we will permanently delete your study from our systems (except to the extent, and only for the duration, that we are required to retain a copy of your study data by applicable law.
3. INTELLECTUAL PROPERTY OWNERSHIP
You acknowledge that all intellectual property rights in the Software and the Documents anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documents other than the right to use them in accordance with the terms of this Licence. Additionally, you acknowledge that our website(s) may contain links to other websites that are not maintained by us or that contain information about third parties’ products or services, and accordingly you hereby disclaim all liability against us in connection with such third-party owned links, websites, products and services.
4. LIMITED WARRANTY & DISCLAIMER
4.1. We warrant to the best of our knowledge for a period of 365 days from the date of your first access to the Software (the “Warranty Period”), that the Software will, when properly used in compliance with the applicable Documents, perform substantially in accordance with the functions described in such Documents. If you notify us in writing within the Warranty Period of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documents, we will, at our sole option, either repair or replace the Software, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.
4.2. The warranty in Section 4.1 above does not apply if the defect of fault in the Software results from: (a) you having altered or modified the Software; (b) you having used the Software in breach of the terms of this Licence;
(c) your negligence or willful misconduct; and/or (d) Software that has been provided as beta, free of charge or for evaluation purposes.
4.3. USERZOOM MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE SOFTWARE AND/OR DOCUMENTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, USERZOOM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON4.3 USERZOOM MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE SOFTWARE AND/OR DOCUMENTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, USERZOOM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
5. LIMITATION OF LIABILITY
5.1. IN NO EVENT SHALL USERZOOM HAVE ANY LIABILITY TO YOU OR ANY OTHER USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU (OR ANY OTHER USER) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. Notwithstanding Section 5.1 above, nothing in this Licence shall limit or exclude liability for:
(a) death or personal injury to the extent resulting from our gross negligence or willful misconduct; or
(b) any other liability that cannot be excluded or limited by applicable law.
6. TERM & TERMINATION
6.1. This Licence shall commence upon the date specified in the applicable order form under which the subscription for your access to the Software is purchased, and shall expire on the expiration date set forth in such order form.
6.2. Your use of the Software and/or Documents may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this Licence by you, (b) if applicable, the termination or expiration of an agency’s agreement with us pursuant to which such agency is providing the Software to you, and/or (c) a breach by the aforementioned agency of its obligations to us with respect to the Software access it is providing to you. Subscriptions to the Software are non-cancelable by you during a subscription term.
6.3. On termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must immediately cease all activities authorised by this Licence; and
(c) you must immediately and permanently delete or remove all login credentials to the Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
7. HANDLING OF PERSONAL INFORMATION
8. GENERAL TERMS
8.1. We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.
8.2. For the avoidance of doubt and notwithstanding anything to the contrary set forth in this Licence or any other agreement between you and us (including without limitation, any master subscription and services agreement (“MSSA”)), this Licence shall be applicable only in the event you have access to the Software and/or Documents and have not entered into an MSSA with us which is still in effect. If you have an active MSSA in place with us, the terms and conditions of such MSSA shall govern.
8.3. This Licence, and any other document(s) expressly referred to in this License, constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to its subject matter.
8.4. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence, any MSSA or any document(s) expressly referred to in this Licence. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence or any document(s) expressly referred to in it.
8.5. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an event outside of our control which includes, but is not limited to strikes, lock-outs or other industrial disputes; breakdown of systems or network access; failures of or problems with the internet or a part of the internet; hacker attacks; virus or other malicious software attacks or infections; power failures; flood, fire, explosion or accident.
8.6. If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, we will not be deemed to have waived our rights against you and it does not mean you do not have to comply with those obligations. If we waive a default by you, we will only do so in writing signed by us, and that will not mean that we will automatically waive any later default by you.
8.7. Each of the terms and conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
8.8. This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are, regardless of any rules concerning conflict of laws, governed by: (a) the laws of the State of California and the federal laws of the United States of America, if you are located in the continent of North America or South America; (b) English law, if you are located elsewhere in the world. You and we both irrevocably agree to the exclusive jurisdiction of the courts of either Section 8.8(a) or Section 8.8(b) herein, as applicable.