UserTesting Subscription Agreement
Effective Date: June 9, 2026
This Subscription, together with each applicable Order Form by and between you (“Customer”) and UserTesting and any other documents incorporated by reference herein or in any Order Form, are collectively referred to as the “Agreement.” Your use of the Products and Services constitutes acceptance of the Agreement. If you are accepting this Agreement on behalf of a company or other legal entity, then you represent and warrant that you are authorized and lawfully able to bind that company or entity to this Agreement.
OVERVIEW
1.1. UserTesting provides Products and Services that enable Customer to independently design, manage, and conduct research tests and studies (“Tests”), including creating and running Tests to collect feedback from independent individuals (“Participants”). The Products and Service make available recordings, responses, and results generated from Tests (collectively, “Output”). Any Services purchased by Customer will be identified in an applicable Order and governed by a separate Statement of Work, which will apply in addition to this Agreement.
1.2. Right to Use. Subject to this Agreement and the applicable Order, UserTesting grants to Customer and its Users a non-exclusive, non-transferable right to access and use the Products solely for its internal business purposes during the Subscription Term. If a Team is specified in an Order, the foregoing right to use is granted to the Team and such group may assign User Accounts to any individual in the Team, provided that where the Order sets forth a number of User seats, each seat shall be used exclusively by the individual User assigned in accordance with Section 4 below.
1.3. Changes. During a Subscription Term, the Products, versions, applications, and/or features contained therein, may change from time to time, provided such changes will not materially degrade the functionality of the Products. Customer will receive new releases, bug fixes, improvements, enhancements, extensions, revisions, and updates to the Products as they are made generally available during the Subscription Term.
ORDER PROCESS
2.1. UserTesting Orders. Customer may purchase Products or Services from UserTesting pursuant to one or more written order forms or similar ordering documents agreed between the parties (each, an “Order”). UserTesting may accept Orders under this Agreement in its sole discretion. Customer’s use of the Products or receipt of the Services will be deemed acceptance of the applicable Order. An Affiliate of Customer may enter into an Order, and by doing so agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement, and both Customer and Affiliate will be considered the “Customer” for the purposes of obligations and responsibilities under this Agreement.
2.2. Free Trials. UserTesting may provide Customer with access to a Free Trial or Beta model access. Any Free Trial will end at the earlier of: (a) the Free Trial end date specified on the Order; (b) the start date of any Order for the same Products or Services on a paid for basis; or (c) termination of the Free Trial at any time by UserTesting in its sole discretion. UserTesting makes no commitments whatsoever with respect to the features, functionality, service levels, support or availability made available as part of a Free Trial or Beta model access and reserves the right to change such features and functionality at any time without notice and in its sole discretion.
2.3. Support and Service Levels. Applicable support services or service level commitments may be specified in the applicable Order and further described in UserTesting’s then-current support descriptions referenced in the Order.
PARTICIPANTS
3.1. Participants. Participants may take part in Tests conducted by Customer using the Products and Services. Participants are not employees, agents, or representatives of UserTesting, and UserTesting does not control Participants’ actions, opinions, or performance. Participants may be sourced (i) by UserTesting directly or through third-party participant providers engaged by UserTesting (“UserTesting Participants”; all data about any UserTesting Participant that is presented by or stored as part of the Services, excluding Output, is “UserTesting Participant Information”), or (ii) directly by Customer by inviting individuals to participate in Tests (“Customer Participants”; all data about any Customer Participant that is presented by or stored as part of the Services is “Customer Participant Information”).
(a) UserTesting Participants. Customer may interact with UserTesting Participants solely through, and only in connection with, the Products and Services. Except with UserTesting’s prior written consent, Customer may not (i) contact, solicit, recruit, or engage such Participants outside the scope of a Test, (ii) add any such Participant to any Customer contact list or contact database, including, if applicable, Customer’s instance of the Research Hub product; (iii) sell, disclose, or otherwise make available such Participant’s information to any third party, or (iv) use the Products and Services for the purposes of attempting to sell Customer’s products or services to a Participant or make the payment of Incentives (as defined below) dependent on a purchase by a Participant.
(b) Customer Participants. Customer is solely responsible for its relationship with Customer Participants, including obtaining all required consents, providing all required notices, and ensuring compliance with applicable laws, employment obligations, and Customer’s internal policies. UserTesting has no responsibility or liability for Customer Participants.
3.2. Customer Control and Responsibility. Customer solely determines the design, content, methodology, scope, and objectives of Tests and is solely responsible for its use of any Output. Customer will ensure that its Tests, instructions, and use of Output comply with applicable laws and this Agreement. UserTesting does not control, direct, advise on, assume any responsibility for, or endorse any Participants, test methodology, research design, Output, or conclusions drawn by Customer, and makes no representations or warranties regarding Participants or Output.
3.3. Participant Confidentiality. UserTesting will require UserTesting Participants to agree to confidentiality obligations that generally restrict disclosure of Test content and Customer will be a third-party beneficiary of such confidentiality obligations. Customer may require Participants to agree to additional obligations in its Tests.
3.4. Participant Consent. UserTesting is responsible for obtaining from each UserTesting Participant any necessary consents for UserTesting’s collection of data from such Participants and its sharing of such data with Customer. Customer is responsible for obtaining from each Participant any necessary consents for Customer’s collection and use of data from Participants, including in connection with Tests and Recordings. UserTesting shall provide within its Products or Services reasonable mechanisms for Customer to obtain such necessary consents and make any required disclosures.
CUSTOMER RESPONSIBILITIES
4.1. Customer Users. To access and use the Products and Services, Customer must register individual User Accounts. Unless otherwise expressly permitted in an Order or product-specific terms, each User Account must be assigned to a single User and may not be shared. Customer may reassign User Accounts provided such reassignment is not intended to circumvent any Team or seat limitations.
4.2. Product Usage. Customer is responsible for: (a) Users’ compliance with this Agreement; (b) the accuracy, quality, legality, and use of Customer Property; (c) preventing unauthorized access to or use of the Products and notifying UserTesting promptly of any such unauthorized access or use; (d) all activities and charges incurred through its User Accounts; and (e) using the Products only in accordance with this Agreement, UserTesting’s Content Policy and applicable laws. Customer understands and agrees that UserTesting may monitor all use of the Products for security, operational, improvement, reporting and performance purposes.
4.3 Restricted Activities. Customer shall not do, and shall not permit any third party to do, any of the following:
(a) reverse engineer, decompile, disassemble, modify, or otherwise attempt to derive the source code or underlying components of the Products, or create derivative works;
(b) copy, reproduce, or frame any material part of the Products;
(c) introduce into the Products any harmful code;
(d) use the Products for any purpose prohibited in this Agreement;
(e) sell, resell, license, sublicense, distribute, lease, or otherwise make the Products available to third parties;
(f) violate, or request that a Participant violate, any applicable law or regulation, or UserTesting’s Content Policy;
(g) interfere with or disrupt the integrity or performance of the Products;
(h) require Participants to accept any terms that alter UserTesting’s rights or Customer’s obligations under this Agreement;
(i) access or use the Products, Output, or Participants available through the Products in order to build, create or design a product or service competitive to UserTesting; and
(j) access or use the Products to train an artificial intelligence or machine learning algorithm.
4.4. Restricted Data. Customer agrees that it will not use the Products and Services to collect, or submit to the Products and Services, any of the following categories of information about Participants: financial account information (e.g., bank account number, information subject to the Payment Card Industry Data Security Standard (PCI DSS)); government-issued identification numbers or documents (e.g., Social Security number, driver’s license, passports); online login credentials (e.g., authentication/authorization credentials, password, security question and answer); biometric identifiers (e.g., genetic data, fingerprints, facial modeling data); or health information subject to enhanced protection under applicable law (e.g., Protected Health Information as defined in the Health Insurance Portability and Accountability Act (HIPAA)), except in such case the parties have executed an appropriate document addressing protections of such health information, including but not limited to a Business Associate Agreement. UserTesting may remove any such information from the Products and Services without prior notice to Customer.
4.5. Enforcement. If Customer breaches this Section 4, UserTesting may suspend access to the Products and Services and/or remove or delete any Output resulting from or constituting such breach.
4.6. Fair Use Policy. This Fair Use Policy applies only to the use of the Products under an Unlimited subscription (which shall be set forth in the Order). Customer may use the Products and Services on an unlimited basis for its internal business research purposes, provided such use is consistent with standard research use cases, applicable research best practices, and typical usage patterns for customers of similar size and scope. UserTesting may monitor usage to assess compliance with this Fair Use policy and to maintain panel quality. Acceptable usage may vary by customer, and UserTesting does not impose fixed numerical limits or unit-based thresholds. Panel quality assessments are qualitative in nature and may consider factors such as feedback from Participants, the clarity and accuracy of Test descriptions, the appropriateness of Test content, and whether Tests are used for bona fide research purposes rather than non-research activities such as marketing, lead generation, or recruiting. If UserTesting reasonably determines that Customer’s usage materially exceeds normal platform usage trends and/or materially degrades panel quality, UserTesting will notify Customer and the parties will discuss in good faith appropriate steps to address such usage, which may include changes to use practices or a mutually agreed amendment to applicable commercial terms. No changes to the Agreement or additional fees will apply unless and until mutually agreed in writing by the parties.
INTELLECTUAL PROPERTY
5.1. UserTesting Property. As between the parties, all rights, title and interest in UserTesting Property shall remain the exclusive and confidential property of UserTesting and/or its licensors from whom UserTesting has obtained the appropriate rights.
5.2. Customer Property. Customer owns and retains all right, title, and interest in and to Customer Property, including without limitation any Output. Customer agrees that UserTesting may access, store, display, transmit, process, and otherwise use Customer Property as needed to provide and operate the Products and Services, including the display of Customer Property to Participants during Tests and to Customer’s Users. UserTesting may also allow its Affiliates, subcontractors, and subprocessors to do the foregoing when necessary to support delivery of the Products and Services. Customer represents and warrants that it has all rights, permissions, and consents necessary to provide Customer Property to UserTesting and to permit its use as contemplated under this Agreement.
5.3. Aggregated Data. UserTesting may aggregate and use Customer Property and data derived from Customer’s use of the Products and Services to develop, improve, and analyze the Products and Services; provided, however, that such data (i) is aggregated with similar data from other customers, (ii) does not directly or indirectly identify Customer, its Users, or any Customer Participant, and (iii) is subject to technical safeguards and business processes designed to prevent re-identification and disclosure of such data.
5.4. Feedback. The parties acknowledge and agree that UserTesting may solicit and Customer may provide to UserTesting suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Products and Services (excluding any Customer Property or Customer Confidential Information contained therein, “Feedback”). Nothing in this Agreement shall restrict UserTesting’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without compensating or crediting Customer or the individual providing such Feedback.
5.5. Third Party Products. Products and Services may offer integrations with or connections to third-party products. If Customer elects to use such integrations and connections with third-party products, Customer is responsible for obtaining any required rights to use such third-party products. UserTesting is not responsible for any third-party products or services or any exchange of data between Customer and any third party. UserTesting may modify or discontinue any integration or connection to third-party products at any time.
5.6. Artificial Intelligence. UserTesting’s Products and Services may include features that leverage the use of artificial intelligence, machine learning, or similar technologies (“AI Features”). UserTesting will not, and will not permit any third party to, use Customer Property to train, fine-tune, or improve any third-party artificial intelligence or machine learning models. To the extent AI Inputs and AI Outputs constitute Customer Property, UserTesting will treat all such AI Inputs and AI Outputs in accordance with the confidentiality and data protection obligations set out in this Agreement. UserTesting will maintain appropriate safeguards designed to ensure that the AI Features do not generate AI Outputs that are unlawful or that result in unlawful discrimination, provided that Customer’s instructions are lawful and not intended to cause unlawful discrimination. UserTesting makes no representations or warranties regarding the accuracy, quality, or usefulness of any AI Outputs. Customer is responsible for any use of or reliance on AI Outputs.
DATA SECURITY AND PRIVACY
6.1. UserTesting will maintain appropriate administrative, technical and organizational security measures designed to safeguard the Products and Customer Property. UserTesting may update its security measures from time to time to reflect process improvements or changing practices, provided that such modifications do not decrease the overall security of the Products or Customer Property. UserTesting will promptly notify Customer of any compromise of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Property. The parties will reasonably assist each other in investigating any such compromise of security and will take such actions as the parties reasonably deem necessary to prevent the continuation or recurrence thereof.
6.2. DPA. Each party shall at all times comply with the terms of the DPA in relation to any collection, use, transfer, or other processing of Personal Data.
PRICING AND PAYMENT TERMS
7.1. Fees and Payment Terms. Customer shall pay all Fees set forth in each Order. Unless otherwise stated in this Agreement or an Order, all Fees are non-cancelable and non-refundable and payable in U.S. Dollars within thirty (30) days of invoice. If Customer fails to pay an undisputed amount when due, then UserTesting may, upon notice and a reasonable opportunity to cure, suspend Customer’s access to the Products and provision of the Services until payment is received. Overdue amounts shall accrue interest at the lesser of the maximum rate permitted by applicable law or 1.5% per month and Customer will be responsible for reasonable costs of collection to the permitted by law.
7.2. No Contingencies. Customer’s purchase of the Products and/or Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by UserTesting regarding such future functionality or features.
7.3. Taxes. Fees are exclusive of all Taxes. Customer is responsible for all Taxes associated with its purchase or use of the Products or Services. UserTesting will invoice Customer for applicable Taxes unless Customer provides valid tax exemption documentation. If any withholding taxes apply, Customer shall gross up payments so that UserTesting receives the full amount due.
7.4. Incentives. This Section applies only to use of the Recruit and Research Hub Products available in the User Interviews platform (the “UI Platform”). Customer must provide an incentive to UserTesting Participants to complete Tests (each, an “Incentive”). Customer may (but is not required to) provide Incentives to Customer Participants to complete Tests. The amount of any such Incentive is determined by Customer, and Customer must disclose the cash value of any non-monetary Incentive (including, without limitation, cryptocurrency). Incentives cannot be in the form of a bank transfer. Customer acknowledges and agrees that, except for failure of delivery of an Incentive to a Participant due to UserTesting’s gross negligence or willful misconduct, Customer is solely liable for Incentives offered to Participants.
(a) Distribution through the UI Platform. If Customer elects to distribute Incentives to Participants using the UI Platform (to the extent Participants reside in a country in which UserTesting supports distribution of such Incentives), Customer agrees that: (i) distribution of the Incentives by UserTesting is solely for Customer’s convenience; (ii) upon completion of a Test by the Participant, Customer will promptly (and in any event within 10 business days) confirm such Participant’s completion within the UI Platform; (iii) UserTesting will enable the Participant to redeem the Incentive in the form supported by the UI Platform (e.g., digital gift cards); and (iv) UserTesting will bill Customer for reimbursement of the full amount of the Incentive plus up to 5% in processing fees (unless otherwise set forth in the Order). If Customer does not confirm a UserTesting Participant’s completion of a Test within 10 business days, UserTesting may elect in its sole discretion to distribute the Incentive to such Participant and bill Customer for reimbursement of its costs as set forth in this Section. If Customer does not confirm a Customer Participant’s completion of a Test within 10 business days, UserTesting reserves the right to confirm such Participant’s completion and close the applicable Project.
(b) Distribution by Customer. If Customer elects to distribute Incentives to Participants directly, Customer agrees that it will distribute the Incentives no more than 10 business days after the Participant’s completion of a Test. If Customer fails to timely deliver an Incentive to a UserTesting Participant within 10 business days, UserTesting may elect in its sole discretion to distribute the Incentive to such Participant in the form supported by the UI Platform (e.g., digital gift cards), regardless of the form of Incentive originally offered by Customer, and UserTesting will bill Customer for reimbursement of its costs in accordance with Section 7.4(b) above. If Customer fails to timely deliver an Incentive to a Customer Participant within 10 business days, UserTesting reserves the right to confirm such Participant’s completion and close the applicable Test. Customer is solely responsible for evaluating, reporting, and remitting any taxes that may be due to any taxing authority in connection with Incentives it distributes to Participants directly.
(c) Cancellation Fee. If Customer cancels a UserTesting Participant after that Participant has been scheduled and does not reschedule such Participant for the same Test, UserTesting reserves the right to charge Customer a cancellation fee (not to exceed 25% of the Incentive amount offered for the relevant Test), which UserTesting will distribute to such Participant.
TERM AND TERMINATION
8.1. Term. This Agreement commences on the Effective Date and continues until terminated. Upon notice of termination of the Agreement, the Agreement will terminate on the later of the date of termination of the last Order subject to this Agreement, or termination of Customer’s access to the Products or UserTesting’s provision of the Services. Each Subscription Term begins and ends on the dates specified in the relevant Order, unless terminated earlier in accordance with this Agreement.
8.2. Termination. Either party may terminate this Agreement or any Order upon written notice if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after notice, or fifteen (15) days for non-payment (unless subject to a good faith dispute and undisputed amounts are paid). If Customer terminates an Order for UserTesting’s breach, UserTesting will refund any prepaid Fees on a prorated basis for the unused portion of the applicable Subscription Term, provided that UserTesting will be entitled to payment for Services performed prior to the effective date of termination. If UserTesting terminates an Order or the Agreement for Customer’s breach, Customer will remain responsible for all Fees for the Order.
8.3. Suspension. UserTesting may suspend Customer’s or any Users’ access to the Products or provision of the Services upon a breach that is not curable or a breach that is curable and remains uncured after 30 days’ written notice. UserTesting will provide Customer with prompt notice of any suspension and, if curable, will restore access as soon as reasonably practicable after the cause for suspension is cured. UserTesting will not be liable for any loss or damages arising from a suspension in accordance with this Section.
8.4. Data Retention. Upon expiration or termination of the relevant Order, UserTesting will retain Customer Property for 30 days thereafter or such other period as agreed by the parties upon termination (“Data Retention Period”), beyond which UserTesting will have no obligation to retain Customer Property. UserTesting will promptly delete Customer Property upon Customer’s written request. Customer is solely responsible for exporting Customer Property prior to the end of the Data Retention Period and, if requested, UserTesting will provide reasonable assistance with exporting Customer Property during the Data Retention Period.
8.5. Accrued Rights and Survival. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement. All provisions which by their nature and intent are reasonably required to survive termination based on the terms of this Agreement (including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations, and limitations of liability) shall survive termination or expiration of this Agreement.
CONFIDENTIALITY
9.1. Use. Each party shall not use the other party’s Confidential Information, except to fulfill performance of the Agreement and in accordance with its terms. Each party shall not disclose the other party’s Confidential Information to anyone other than their Affiliates and its and their respective directors, officers, employees, contractors, subcontractors, service providers, advisors, and agents, who need to know the Confidential Information and are bound by obligations of confidentiality as restrictive as those set forth in the Agreement.
9.2. Standard of Care. Each party will use at least the same standard of care to protect the other party’s Confidential Information as it does with its own Confidential Information of similar nature, but in no event shall such standard fall below a reasonable standard of care.
9.3. Permitted Disclosure. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information to the extent required by a court of competent jurisdiction or other applicable governmental authority or as required by applicable law, provided that (insofar as legally permissible) such party uses reasonable efforts to notify the other party in advance of such disclosure so as to permit the other party to request confidential treatment or a protective order prior to such disclosure.
9.4. Injunctive Relief. Each party acknowledges that breach of this provision may result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party may be entitled to seek injunctive relief to enforce the provisions of this Section.
WARRANTY
10.1 Product Warranty. UserTesting warrants to Customer that (i) during the applicable Subscription Term, the Products will materially conform to their then-current Documentation, (ii) UserTesting will use commercially reasonable efforts to maintain the general functionality of the Products, and (iii) when used in accordance with this Agreement, the Products will not infringe any intellectual property rights of a third party (provided that the sole remedy for breach of the foregoing warranty is indemnification pursuant to Section 11.1). The foregoing warranties do not apply to any issues resulting from: (a) factors outside of UserTesting’s reasonable control; (b) any actions or inactions of Customer or any third parties not in UserTesting’s reasonable control; or (c) Customer’s operating environment or systems. Customer’s sole and exclusive remedy for breach of this warranty shall be that UserTesting shall use commercially reasonable efforts to correct the non-conforming Products. If UserTesting is unable to correct the non-conformity within a reasonable time (considering the severity of the error and its impact on Customer), Customer may terminate the applicable Order with respect to the non-conforming Products in accordance with Section 8.2. UserTesting shall have no obligation with respect to a warranty claim under this Section unless notified of such claim within sixty (60) days after Customer first becomes aware of the material nonconformance.
10.2. Services Warranty. UserTesting warrants to Customer that the Services will be performed in a professional and competent manner and with reasonable care and skill. The foregoing warranty shall not apply to any issue resulting from: (a) factors outside of UserTesting’s reasonable control; or (b) UserTesting’s compliance with Customer’s specific instructions. Customer’s sole and exclusive remedy for breach of this warranty shall be that UserTesting shall use commercially reasonable efforts to reperform the non-conforming Services to the standard set forth in this Section. Customer will notify UserTesting of any material non-conformance with the Services within a reasonable time.
10.3. Mutual Warranties. Each party represents and warrants that: (a) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and (b) it will comply with all applicable laws and regulations in connection with its performance under this Agreement, including but not limited to regulations relating to export control, anti-slavery, anti-bribery and anti-corruption.
10.4. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW AND USERTESTING DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS AND SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY FREE TRIALS, ARE PROVIDED WITHOUT ANY WARRANTY OF ANY KIND.
INDEMNIFICATION
11.1. UserTesting Indemnification Obligations. UserTesting will indemnify, defend and hold harmless Customer against any Losses arising directly from a third-party claim to the extent arising out of related to (i) any breach by UserTesting of Section 3.4 (Participant Consent) and/or (ii) an allegation that the Products, when used by Customer as authorized in this Agreement, infringe or misappropriate any intellectual property right of any third party (an “Infringement Claims”). UserTesting shall have no obligation with respect to an Infringement Claim to the extent it is based upon: use of the Products other than in accordance with this Agreement, applicable Documentation, or UserTesting’s instructions;modifications, alterations, combinations or enhancements of the Products not authorized by UserTesting; Customer Property; Customer’s violation of Section 4; or Customer’s continued use of the Products after being notified of the alleged infringement and provided a modification that would have avoided the claim. If a Product becomes or, in UserTesting’s opinion, is likely to become, the subject of any Infringement Claim, UserTesting may, at its option: (a) obtain for Customer the right to continue using the Product; (b) replace or modify the Product so that it becomes non-infringing without materially reducing its functionality, or (c) terminate the applicable Order relating to the Product and refund any prepaid Fees for the unused portion of the applicable Subscription Term.
11.2. Customer Indemnification Obligations. Customer will indemnify, defend, and hold harmless UserTesting against any Losses arising from a third-party claim to the extent arising out of or related to (i) any breach by Customer of Section 3.4 (Participant Consent) and/or (ii) an allegation that Customer Property infringes or violates any intellectual property right of any third party, to the extent arising from UserTesting’s use of Customer Property as permitted under this Agreement. Customer will have no obligation under this Section to the extent such claim arises from UserTesting’s unauthorized use of the Customer Property.
11.3. Required Procedures. Any claim for indemnification hereunder requires that (a) the party seeking indemnification provide prompt written notice of the claim and reasonable cooperation, information, and assistance, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim, provided that: (i) the indemnified party may retain separate counsel and participate in the defense at its own expense; (ii) no settlement that materially adversely affects the rights or reputation of the indemnified party shall be agreed to without that party’s prior written consent which shall not be unreasonably withheld or delayed; and (iii) the indemnifying party may not settle any claim against the indemnified party unless the settlement unconditionally releases the indemnified party of all liability with respect to such claim.
LIMITATION OF LIABILITY
12.1. Consequential and Indirect Damages Waiver. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, LOSS OF GOODWILL, BUSINESS LOSS, OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF ADVISED OF THEIR POSSIBILITY IN ADVANCE.
12.2. Liability Cap. EXCEPT FOR (A) FEES OWING TO USERTESTING, (B) EITHER PARTY’S OBLIGATIONS UNDER SECTION 9 (CONFIDENTIALITY)) OR SECTION 11 (INDEMNIFICATION), (C) A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND (D) ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO USERTESTING (EXCLUDING PARTICIPANT INCENTIVES) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATING TO A BREACH OF APPLICABLE DATA PROTECTION LAWS OR THE DPA SHALL NOT EXCEED IN AGGREGATE THREE (3) TIMES THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO USERTESTING (EXCLUDING PARTICIPANT INCENTIVES) UNDER THE APPLICABLE ORDER(S) GIVING RISE TO SUCH CLAIM.
GENERAL
13.1. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except to an Affiliate; or in connection with a merger, acquisition, or sale of all or substantially all of its assets, in each case upon written notice to the other party. Any attempt to assign this Agreement other than as permitted above will be null and void.
13.2. Order of Precedence. In the event of a conflict, the order of precedence is: the applicable Order; the DPA; and the Agreement.
13.3. Counterparts and Electronic Acceptance. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. This Agreement may be accepted in electronic form and Customer’s acceptance will be deemed binding between the parties. Neither party may contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form.
13.4. Entire Agreement. The Agreement constitutes the entire agreement between Customer and UserTesting regarding its subject matter and supersedes all prior or contemporaneous communications regarding such subject matter. Any additional or conflicting terms in a Customer purchase order or similar document are hereby rejected and will have no effect. This Agreement may be amended only by a written agreement signed by authorized representatives of both parties.
13.5. Export Compliance. The Products or Services may be subject to applicable export control and economic sanction laws and regulations. Each party represents that it is not named on any applicable denied-party list and agrees that it will not access, use, export, re-export, or allow access to the Products or Services in violation of such laws, including by accessing or using the Products or Services in any embargoed or restricted country or region. Customer is solely responsible for determining whether its use of the Products or Services, including any Customer Property, is subject to export control restrictions.
13.6. Force Majeure. Neither Customer nor UserTesting will be liable for delays or non-performance of any of its obligations only to the extent that the delay or failure to perform the obligation in question is caused by any event or circumstance beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemics, strikes or other labor problems or Internet service provider failures or delays.
13.7. Governing Law. This Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are, regardless of any rules concerning conflict of laws, governed by, and subject to the exclusive jurisdiction of the courts of: (a) if Customer is located in the continent of North America or South America, the laws of the State of Delaware, excluding its conflict of law rules, and the state and federal courts located in Delaware, or (b) if Customer is located elsewhere in the world, the laws of England and Wales and the exclusive jurisdiction of the courts located in England and Wales. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
13.8. Independent Contractors. The parties are independent contractors. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
13.9. Notices. Notice shall be deemed given upon receipt via email, personal delivery, or delivery by a nationally recognized overnight delivery service. Notices to Customer shall be sent to the email appearing on the applicable Order or an updated notice address delivered in writing (including by email) subsequent to an Order taking effect. Notices to UserTesting shall be sent to the email appearing on the applicable Order, or an updated notice address delivered in writing (including by email) subsequent to an Order taking effect, and with an e-mail cc to legal@usertesting.com.
13.10. No Waiver. Failure to enforce a provision in this Agreement will not constitute a waiver of that provision, and a waiver of a provision will be binding only if made in writing by the waiving party.
13.11. Publicity. Neither party will use the names, likeness, logos, trademarks or other identifying information of the other party without the prior written consent of the other, except that Customer agrees that UserTesting may use Customer’s name, likeness, logos, trademarks or other identifying information in customer listings and in marketing material.
13.12. Severability. If any provision is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated.
13.13. Section Headings. Section headings are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
DEFINITIONS
14.1. The following definitions shall apply to the Agreement:
“Affiliate” means any business entity that owns more than 50% of the voting interest in a party, or otherwise directly or indirectly controls, is controlled by, or is under common control with a party, for as long as such party remains controlled by or is under common control by such party;
“AI Inputs” means any and all data, content, text, recordings, prompts, or materials of any nature used as inputs to the AI Features;
“AI Outputs” means any and all results, insights, recommendations, or materials of any nature generated through Customer’s or any User’s use of the AI Features;
“Confidential Information” means Customer Confidential Information or UserTesting Confidential Information as the context requires. Confidential Information shall not include information to the extent that it (a) is publicly known at the time of disclosure, (b) is received from a third party without restriction on disclosure and without breach of confidentiality or non-disclosure obligations, (c) is published or otherwise made known to the public by the party who owns it, or (d) was generated independently without reference to the other party’s Confidential Information;
“Customer Confidential Information” means: (a) Customer Property; and (b) all other non-public information regarding Customer’s legal, financial or business affairs;
“Customer Property” means: (a) any and all data, files, attachments, text, images, and other content that the Customer or its Users upload or input as content of Tests; (b) Output; and (c) Customer Participant Information.
“Documentation” means standard operational and technical specifications, if any, provided by UserTesting with an Order.
“DPA” means the Data Processing Agreement set forth at https://www.usertesting.com/privacy-center/data-processing-agreement;
“Fees” means the amounts that are set forth in an Order or otherwise due and payable under the Agreement;
“Free Trial” means limited, free access to the Products and/or Services;
“Losses” means any liabilities, claims, causes of action, damages, judgments, settlements, expenses and/or costs (including reasonable legal fees);
“Personal Data” shall have the meaning ascribed to it in the DPA;
“Products” means certain UserTesting proprietary software applications, including web-based, self-service digital user testing and customer experience measurement solutions, as further set out in the applicable Order;
“Recordings” means a feature that allows Customer to record a Participant in connection with a Test, including any moderated interview and any activity on a web site or application tracked as part of a Test;
“Services” means certain customized or professional services that UserTesting may offer on a fee-based basis;
“Subscription Term” means the length of time Customer will have access to and/or use of the Products as set forth in an Order;
“Taxes” means all sales, value added, and similar point-of-sale taxes, levies, duties, fines or other charges imposed by any governmental authority in connection with the provision of the Products and/or Services or this Agreement, and any related interest or penalties, except taxes imposed on or measured by a party’s net income, profits or property;
“Team” means Customer’s internal business group or team specified in an Order, including any such group previously or otherwise referred to as a “Workgroup”;
“User” means a named employee, agent, or independent contractor of Customer who is authorized to use the Products on Customer’s behalf;
“User Account” means an individual account that enables a User to access and use the Products;
“UserTesting” means the UserTesting entity that enters into an Order with Customer;
“UserTesting Confidential Information” shall mean: (a) UserTesting Property; (b) all other non-public information regarding UserTesting’s legal, financial, business affairs, technical features, functionality, product roadmap or security measures;
“UserTesting Property” shall mean: (a) the Products and Services, including any models, features, systems, or improvements thereto developed by or for UserTesting; (b) any pre-existing intellectual property and related rights of UserTesting used in performance of UserTesting’s obligations under an Order; (c) UserTesting Participant Information; and (d) any modifications, derivative works or updates of the foregoing.
