USERTESTING TESTER AGREEMENT
This Agreement (the “Terms”) contains the exclusive terms and conditions between you and UserTesting, Inc., a California corporation with offices at 2672 Bayshore Parkway, Mountain View, CA, 94043, USA (“UserTesting”), and it governs your participation in user experience and usability studies (the “User Tests”). By participating in a test, you represent and warrant that you are 18 years of age or older and agree to abide by and to be bound by this Agreement. If you do not agree to all of the terms of this Agreement or if you are younger than 18 years old, you may not participate in a test.
1.1 Platform and Usability Testing.
UserTesting has developed a software platform and service (the “Platform”) that enables UserTesting clients to run User Tests and testers (“Testers”) to perform and record tests. The Platform, User Tests, and all related materials and information are referred to as “Proprietary Information.” You agree to the Tester obligations as fully set forth in the complete sections referenced below, each of which is a material condition precedent to your participation as a Tester:
You will use Proprietary Information only as permitted by this Agreement (see Use of and Limited License to Proprietary Information)
You will provide us accurate information (see Tester Information)
You will maintain the confidence of all Proprietary Information you received during the course of your activities as a Tester (see Confidentiality and Security and Passwords)
1.2 Third-Party Beneficiary.
UserTesting’s clients for whom you are conducting Usability Testing shall be considered third party beneficiaries of this Agreement to the extent that any act or omission by you causes any damage or liability to any such client, and such client shall have the right to enforce any provision of this Agreement.
2. OWNERSHIP & PROPRIETARY RIGHTS
UserTesting shall solely own all right, title, and interest in and to all results of your Usability Testing, including all video and audio recordings you create, conclusions, suggestions, comments, and any related reports made by you or in connection with your Usability Testing under this Agreement (“Testing Results”). You hereby assign to UserTesting, for no additional consideration, any invention, work of authorship, mask work, idea, process, or know-how (whether patentable or not) that is conceived, learned, or reduced to practice in the course of performance under this Agreement and sole ownership of any related patent rights, copyrights (including moral rights, provided that non-assignable moral rights are waived), trade secret rights, mask work rights, and other rights. You agree to take any action reasonably requested by UserTesting, at UserTesting’s expense, to evidence, perfect, obtain, maintain, enforce, or defend such rights.
3. TESTER OBLIGATIONS
All User Test content is to be treated as extremely confidential. By consenting to this Agreement, you agree to protect and to hold confidential any Proprietary Information provided, used, or arising in connection with Usability Testing. You agree that you shall not use or disclose (except as expressly authorized by this Agreement) Proprietary Information, unless such Proprietary Information becomes part of the public domain. UserTesting clients are third-party beneficiaries to this Agreement, which means that they may enforce these confidentiality obligations against you directly. In some cases, UserTesting clients may also require that you sign a Non-Disclosure Agreement directly with them. Without limiting these obligations, you specifically agree to keep in absolute confidence and not to disclose or discuss with anyone, even family members, any information about the Usability Testing you receive or provide through your participation in a User Test, including any information about any UserTesting client.
3.2 Tester Information.
When you participate in usability tests, you may be asked to provide information about yourself, which may include personally identifiable information such as your name, email address or other contact information, demographic information such as age, gender, education, employment status and hobbies, or other information that we may request to facilitate Usability Testing (collectively, “Tester Information”). You represent that the Tester Information that you provide to UserTesting will be accurate and complete. You hereby give UserTesting permission to share your Tester Information as we believe in good faith to be appropriate: (i) under applicable law; (ii) to comply with legal process; (iii) to respond to requests from public and government authorities; (iv) to enforce this Agreement; and (v) to protect the rights, privacy, safety, operations, or property of UserTesting, our clients, you, or others. For more information on how your Tester Information may be used, please see the Privacy FAQs on the UserTesting website
3.3 Tester Requirements.
You are responsible for having a valid e-mail address as well as any equipment and communication services necessary to participate in the test.
3.4 Screen Recorder.
Testers must download UserTesting’s screen recorder during the course of the test. UserTesting grants you a limited, royalty-free, non-transferable, non-exclusive right and license to use the Screen Recorder on your personal, non-commercial device, solely for the purpose of providing Usability Testing services to clients of UserTesting.
3.5 Usability Test Recordings and Device Access.
You agree that UserTesting may collect video or photographic recordings of your face, audio recordings of your voice, and may access the device on which you download the Screen Recorder to capture screen recordings of your actions during User Tests, including your answers to various questions and related verbal or written commentary and any sights and sounds that arise during your participation in a User Test.
In the event that any other person’s likeness or voice is recorded during a Usability Test, you represent and warrant that you will obtain any necessary consents to share the Usability Testing recording with UserTesting and its clients. You agree that UserTesting may share any Usability Test recordings with its clients.
3.6 Device Information.
You agree that, in addition to collecting device recordings of Usability Testing, UserTesting may collect other information about the device(s) you use for Usability Testing, including but not limited to device identifiers, IP address, location information, usage information, operating system, service provider, software or app content. In order to collect this information, UserTesting may serve cookies or related technologies to your device. For more information, please see the our Privacy FAQs, which are expressly incorporated into this Agreement by reference
3.7 Anonymous Information.
UserTesting may post on its Site audio and video content that you provide while performing Usability Testing services, provided that UserTesting will not post your full name or other personally identifiable information. UserTesting will take reasonable precautions to limit use of such information, however, you acknowledge that third parties may develop means by which they can circumvent such precautions and download such audio and video content. In such case, UserTesting shall not be liable for such third party downloading.
3.8 Other Sensitive Information.
Some UserTesting clients may require you to share additional personally identifiable information or sensitive information in order to properly perform Usability Testing. For such User Tests, UserTesting or the client will seek your explicit consent before collecting or sharing such information.
3.9 Access to Testing and Other Information. Unless UserTesting agrees in writing:
- You may not copy or record any Proprietary Information, including the results of your Usability Testing.
- You may not copy or take screenshots/videos of the Elements, the UserTesting Screen Recorder, and/or disclose such Proprietary Information to other Testers or third parties in any manner.
- If a Usability Test requires you to download an Element onto your device, you will promptly delete such Element after completion of the Usability Test.
- If a Usability Test provides you with access to a password-protected website or non-public website, you will not access such website after completion of that Usability Test.
3.10 Security and Passwords.
You understand that UserTesting takes steps to ensure that your Tester Information is treated securely, but no Internet transmission or method of electronic storage is 100% secure or error free. You acknowledge and agree that UserTesting cannot guarantee the security of any information provided by you and that you provide information at your own risk.
4. OTHER TERMS AND CONDITIONS
4.1 International Testers.
We control and operate the Usability Testing services from our offices within the United States of America. If you participate from locations outside of the United States, you do so on your own initiative and at your own risk and are responsible for compliance with applicable local laws.
4.2 Other Rights.
All rights not expressly granted by UserTesting in this Agreement are reserved.
4.3 No Endorsement.
NO ENDORSEMENT OF OR PARTICIPATION BY ANY THIRD PARTY SHOULD BE INFERRED DUE TO ANY REFERENCE TO THAT THIRD PARTY OR INCLUSION OF DATA RELATING TO THAT THIRD PARTY IN CONNECTION WITH A USABILITY TEST.
4.4 WARRANTY DISCLAIMER
The parties acknowledge and agree that Usability Testing is experimental in nature and that any and all Proprietary Information is provided “AS IS” and may not be functional on any machine or in any environment. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE FOR THE PLATFORM, USABILITY TESTING, ELEMENTS AND ANY OTHER INTERACTION THAT YOU MAY HAVE WITH THE RELEASED PARTIES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM OR USABILITY TESTING IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
4.5 LIMITATION OF LIABILITY
IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, OR OTHER THEORY (A) FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, OR (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR © FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST REVENUES, LOST PROFITS, GOODWILL, USE, DATA, OR OTHER INTENGIBLE LOSSES (EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
IN NO EVENT WILL THE RELEASED PARTIES’ AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE LESSER OF ONE THOUSAND DOLLARS ($1000) OR THE AMOUNT PAID OR PAYABLE TO YOU FOR PROVISION OF THE USABILITY TESTING SERVICES. YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify, and hold harmless the Released Parties and their employees, suppliers and licensors, clients, and their respective officers, directors, employees, agents, subsidiaries and affiliates, from and against any third-party claim, demand, liability, loss, damage, cost or expense (including without limitation reasonable legal and accounting fees) arising out of or related to: (A) your participation in Usability Testing; (B) your use of any Proprietary Information provided or obtained in connection with Usability Testing; © your failure to comply with this Agreement, including, without limitation, your disclosure of any Proprietary Information that is provided to you; (D) your infringement, violation, or misappropriation of any third party rights; or (E) any violation of applicable laws or regulations. The Released Parties shall promptly provide notice to you of any such claim, demand, liability, loss, damage, cost or expense.
4.7 BASIS OF BARGAIN.
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
4.8 Acknowledgement and Acceptance of Use of Personally Identifiable Information for Tester’s residing in the EEA and other Regions
By agreeing to these terms you acknowledge and agree that we may use, store and process personally identifiable information (or “Personal Data”) which you provide to UserTesting, including email and other related information that may be collected as part of a User Test or for the purpose of UserTesting Services to UserTesting’s customers (the “Agreed Purpose”). You also agree that, as a data controller of your, the data subject’s, Personal Data, we may process and transfer personally identifiable Information to our data centers in strategic locations (including, but not limited to, the United States, Singapore and Ireland) to support UserTesting’s customers in those regions and in other jurisdictions outside of the European Economic Area (“EEA”), which may have different data protection standards to those protected in the EEA, in connection with the Agreed Purpose, in order to enhance the responsiveness of the Service we provide and allowed for improved access and uptime to UserTesting’s customers.
5. GENERAL TERMS
5.1 Entire Agreement.
This Agreement constitutes the entire agreement between you and UserTesting relating to the subject matter of this Agreement, and shall completely replace any prior agreements, oral or written, between you and UserTesting in relation to you acting as a Tester for UserTesting.
5.2 Changes to this Agreement.
UserTesting reserves the right to discontinue Usability Testing services at any time or otherwise make changes to its services at any time, without notice, and without liability to you.
5.3 Option to Exercise or Enforce.
UserTesting’s failure to exercise or enforce any legal right or remedy or provision of this Agreement (or which UserTesting has the benefit of under any applicable law) will not constitute a waiver of such right, remedy, or provision.
In the event that any of the provisions of this Agreement is found by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the other provisions of this Agreement remain in full force and effect.
You may not assign or delegate any rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void and without effect. UserTesting may freely assign or delegate all rights and obligations under this Agreement, in whole or in part.
5.6 Equitable Relief.
You acknowledge and agree that due to the unique nature of the Proprietary Information, there may be no adequate remedy at law for any breach of your obligations in this Agreement, that any such breach may allow you or third parties to unfairly compete with UserTesting or its clients, resulting in irreparable harm to such parties. As such, upon any such breach or threat thereof, UserTesting or an applicable client shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
5.7 Controlling Law, Arbitration.
This Agreement and the relationship between you and UserTesting shall be governed by the laws of the State of California without regard to its conflict of law provisions. You agree to first contact UserTesting at firstname.lastname@example.org regarding any claim or controversy arising out of or relating to this Agreement or your participation in Usability Testing. You and UserTesting agree to submit to the personal and exclusive arbitration of any disputes relating to this Agreement or your participation in Usability Testing under the rules of the JAMS ADR. For more information visit www.jamsadr.com. Any such arbitration, to the extent necessary, shall be conducted in Mountain View, California. You covenant not to sue UserTesting in any other forum.
You agree that UserTesting may communicate with you electronically or telephonically regarding this Agreement, Usability Testing, security, privacy, and administrative issues.
6. QUESTIONS AND COMMENTS
Questions, comments and requests in relation to this Agreement should be sent to email@example.com, or via regular mail to: