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UserTesting Participant Terms of Service

Thank you for your interest in using the UserTesting Platform to deliver your feedback on products, services and other content from organizations all around the world! Your feedback helps these organizations better understand and empathize with their customers and users. These terms shall govern your access to and use of the UserTesting Platform. As used herein, the “UserTesting Platform” shall refer to all platforms owned and operated by User Testing, Inc. and all subsidiaries thereof. User Testing, Inc. and all subsidiaries shall collectively be referred to as “UserTesting” for purposes of this Agreement.

To use the UserTesting Platform, you must agree to these UserTesting Participant Terms of Service (“Terms of Service”), which are published at https://www.usertesting.com/terms-of-use-participant, and which may be updated by us from time to time. You must also agree to and abide by the following policies: Privacy Policy, Participant Code of Conduct, and Content Policy. These policies along with these Terms of Service are referred to together as the “Agreement”. If you provide your email address to us, we will notify you if we change any material terms of these Terms of Service, and your continued use of the Platform will be deemed acceptance of the updated Terms of Service.

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT IN SECTION 6.6 THAT REQUIRES, WITH LIMITED EXCEPTION, THAT YOU AND USERTESTING ARBITRATE CLAIMS ON AN INDIVIDUAL BASIS.


By accepting these Terms of Service as indicated below, you represent and warrant that you are 18 years of age or older, and that you have read, understood and agree to the entire Agreement.

If you are accepting this Agreement on behalf of a company or other legal entity, you also represent and warrant that you have the authority to bind that entity to the terms of this Agreement and that you agree to this Agreement on the entity’s behalf. In this case, references to “you” shall be both to you individually as well as to the entity.


1.0 Overview of the Platform

1.1 Platform and Tests

UserTesting has developed a software platform (the “Platform”) that enables UserTesting or its customers (“Customers”) to define questions and tasks (“Tests”) in order to solicit feedback on any brand, design, content or current or potential offering. A person who uses the Platform in order to participate in one or more Tests is referred to in this Agreement as a “Participant”.

If permitted as part of their purchase, Customers can recruit their own Participants (“Private Participants”) to take a Test on the Platform or can request UserTesting to source Participants for them.

UserTesting directs invitations for Tests from a Customer to groups of Participants according to the Customer’s test plan. If a Test is directed to you, you will have the opportunity to accept the Test. You are not required to accept a Test directed to you.

Each Test completed by a Participant shall be recorded (a “Recording”) and made available to the Customer on the Platform. A Recording of a Test you complete may include, among other things, your voice, video, face, movements, screen, text inputs, and device and screen interactions.

1.2 Rewards

Upon completing a Test, you may be entitled to receive a payment, a gift card, points or other rewards (“Rewards”). In advance of each Test, you will be informed through the Platform or directly if completion of the Test entitles you to a Reward.

You are responsible for determining any tax liabilities incurred as a result of receiving a Reward. If you are a Participant with U.S. tax obligations, you may be required to provide UserTesting with W-9 information.

Occasionally, a Customer may offer to provide a Reward to you for completing a Test it developed. If a Customer makes such an offer, then you shall receive the Reward directly from that Customer, and you acknowledge and agree that UserTesting has no obligation with respect to such Reward.

Any Participant who engages in any of the Restricted Activities set out below shall not be entitled to receive a Reward.

1.3 Your Role as a Participant and Relationship with UserTesting

As a Participant, you are a user of our Platform. Our Platform connects you with Customers seeking Participants for Tests. As a Participant, you are operating as a participant in market research. UserTesting does not employ you.

Nothing in this Agreement will be construed to make you an agent, employee, partner or legal representative of or joint venture with UserTesting. You will not be entitled to any employment-related benefits and you are solely responsible for your taxes.

1.4 Third-Party Beneficiary

Customers for whom you are conducting Tests are third-party beneficiaries of this Agreement. To the extent that any act or omission by you causes any damage or liability to any such Customer, such Customer shall have the right to enforce any provision of this Agreement.

2.0 Information Collected

2.1 Participant Information

We care about the privacy of Participants. When you use the Platform, register with UserTesting to become a Participant, fill out questionnaires related to specific Tests, or complete a Test, UserTesting will receive and collect information about you, which may include, but is not limited to:

  • personally identifiable information such as your name, email address or other identification, contact and account information

  • demographic information such as age, gender, education, employment status and hobbies

  • other information that we may request to facilitate the completion and analysis of Tests (collectively, “Participant Information”)

You represent that the Participant Information that you provide to UserTesting will be accurate and complete.

2.2 Recordings

You understand and agree that each Test you take is captured in a Recording and that the Recording may include video or photographic recordings of your face, audio recordings of your voice, recordings of your screen, text inputs, recordings of interactions with your device, and recordings of interactions with your surroundings, provided that all such information capture will only occur in connection with a Test.

You further understand and agree that where the Test is created by a Customer, UserTesting will provide a copy of the Recording of that Test to the Customer for the Customer’s use.

2.3 Participant Content

UserTesting makes Recordings of the Tests you take and may also collect other content such as comments, suggestions and ideas you post to, or send over, the Platform, whether in response to a Test prompt or otherwise. This content, together with Recordings, are referred to in these Terms of Service as “Participant Content”.

You represent and warrant the following:

  • You have obtained and are solely responsible for obtaining all consents as may be required by law to provide any Participant Content relating to third parties.

  • Your Participant Content and UserTesting’s use thereof as contemplated by this Agreement and the Platform will not violate any law or infringe any rights of any third party.

  • UserTesting may exercise the rights to your Participant Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.

  • To the best of your knowledge, all your Participant Content and other information that you provide to us is truthful and accurate.

2.4 Privacy

For information on how your Participant Information and the Participant Content may be used, please see our Privacy Policy.

3.0 Ownership and Proprietary Rights

3.1 Assignment of Test Results to UserTesting

In consideration for your use of the Platform and where a Reward is provided, your receipt of such Reward, you hereby assign to UserTesting all right, title, and interest you have in and to all results of your Tests, including the Recording and your Participant Content (“Test Results”), provided that non-assignable moral rights are waived. You agree to take any action reasonably requested by UserTesting, at UserTesting’s expense, to evidence, perfect, obtain, maintain, enforce, or defend such assigned rights.

You acknowledge and agree that UserTesting will provide Recordings of Tests created by a Customer to the Customer for their business use.

You acknowledge and agree that Recordings of Tests developed by UserTesting may be publicly displayed or distributed by UserTesting. These Tests will be clearly identified on the Platform. You will be given a chance to opt out of including a Recording of a Test you completed in such public display or distribution.

You may submit comments or ideas about the Platform or Tests, including without limitation about how to improve the Platform, Tests, or our other products or services (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place UserTesting under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, UserTesting does not waive any rights to use similar or related ideas previously known to UserTesting, or developed by its employees, or obtained from sources other than you.

3.2 Use of and Limited License to the Platform

You acknowledge and agree that all content, designs, features, functions, elements and aspects of the Platform are the exclusive property of UserTesting, or its licensors, and may be protected by applicable intellectual property and other laws.

Subject to the provisions of this Agreement, UserTesting grants to you a personal, non-sublicensable, nonexclusive, non-transferable, freely revocable, limited license to use the Platform as permitted by the features of the Platform solely to conduct Tests on behalf of UserTesting and Customers, and in accordance with any documentation or instructions supplied by UserTesting or such Customers. UserTesting may terminate this license at any time for any reason or no reason.

Except as expressly provided in this Agreement, nothing provided in connection with Tests shall be construed as conferring upon you any license under any of UserTesting’s, Customers’, or any other party’s Intellectual Property Rights, whether by estoppel, implication, waiver, or otherwise. UserTesting reserves all rights not expressly granted herein in the Platform and any related content.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

4.0 Your Obligations

4.1 Confidential Information

When you access the Platform, you will be shown or exposed to both Customer Confidential Information and UserTesting Confidential Information

Customer Confidential Information” means the Tests developed by a Customer, non-public information about a Customer’s brand, design, content or current or potential offering, and the fact that the Customer has requested that a Test be completed on the Platform.

UserTesting Confidential Information” means all non-public content, designs, features, functions, elements and aspects of the Platform, and the Test Results.

Customer Confidential Information and UserTesting Confidential Information are referred to in these Terms of Service collectively as “Confidential Information”.

4.2 Your Obligations of Confidentiality

You agree not to disclose Confidential Information to anyone other than UserTesting or the Customer who developed the Test giving rise to the Confidential Information.

You agree not to use Confidential Information for any purpose other than completing the Tests you have accepted and assigning the Test Results to UserTesting.

Notwithstanding the foregoing, you may disclose Confidential Information to the extent required by a court of competent jurisdiction or other applicable governmental authority or as required by applicable law.

You agree and acknowledge that your breach or threatened breach of this provision may result in irreparable harm to UserTesting or a Customer, for which money damages would be an insufficient remedy, and therefore that UserTesting or such Customer will be entitled to seek injunctive relief to enforce the provisions of this section.

As a third-party beneficiary to this Agreement, a Customer may enforce these confidentiality obligations against you directly. In some cases, a Customer may also require that you sign a separate non-disclosure agreement directly with them.

4.3 Security and Passwords

You understand that UserTesting takes steps to ensure that your Participant 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. You are responsible for maintaining the confidentiality of any usernames and passwords associated with your account and for monitoring all activity under your account. You are responsible for all activities, acts, or omissions that occur under your account, and you agree to assume full responsibility for any such activities, acts, or omissions. If you become aware of any unauthorized use of your password or your account, you should notify UserTesting immediately at the email address provided at the end of this Agreement.

4.4 Restricted Activity

You are not permitted to do any of the following (each a “Restricted Activity”):

  • disclose or share your UserTesting account login information with any third party;
  • create more than one account on the Platform;
  • knowingly provide inaccurate information through the Platform;
  • use the Platform for the benefit of anyone other than UserTesting or the Customer for which you are completing a Test;
  • 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 UserTesting Content Policy;
  • 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;
  • copy the Platform or any part, feature, function or user interface thereof;
  • frame or mirror any part of the Platform;
  • access or use the Platform in order to build a competitive product or service or to benchmark with another product or service;
  • engage in fraudulent, obscene, harassing or illegal conduct on the Platform; or
  • copy or take screenshots/videos of any Test, or any part of the Platform.

You may forfeit your right to receive a Reward by engaging in any of the above Restricted Activities. In addition, UserTesting may suspend or terminate your access and license to the Platform if it determines that you have engaged in any Restricted Activity.

You understand and agree that UserTesting may monitor all use of the Platform for security, operational, improvement and performance purposes.

5.0 Other Terms and Conditions

5.1 Termination

UserTesting reserves the right to terminate your access and license to the Platform at any time and for any reason.

5.2 California Residents

The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

5.3 Non-U.S. Participants

UserTesting does not make any representation that any Confidential Information related to Tests or other UserTesting Intellectual Property Rights are appropriate or available for use in your specific geographic location, and you accessing the Platform from territories where such activity is illegal is prohibited. If you enroll as a Participant from locations outside of the United States, you are responsible for compliance with applicable local laws. In any event, UserTesting will comply with the terms of its Privacy Policy in relation to your role as a Participant.

5.4 Assignment of Certain Rights and General Release

In consideration for your use of the Platform and where a Reward is provided, your receipt of such Reward, in addition to other good and valid consideration, the receipt and sufficiency of which you hereby acknowledge, you grant to UserTesting, its legal representatives, assigns, agents, employees, and all third party beneficiaries to this Agreement (specifically including, but not limited to, the Customers for whom you perform Tests), and each of their respective heirs, successors and assigns (collectively, the “Released Parties”), the unrestricted permission to copy, exhibit, distribute, publicly perform and display, broadcast, publish, and otherwise use and exploit pictures, videos or digital audio recordings of you obtained in connection with Tests and all digital information pertaining to such, in still, single, multiple, moving or video format, or in which you may be included in whole or in part, or composite, or distorted in form, or in reproductions thereof, in color or otherwise, in any and all media, whether now existing or hereafter invented for advertising, marketing, promotion or any other lawful purpose. The foregoing shall include, but not be limited to, completed Tests and Test Results.

You waive any rights, claims or interest you may have to control the use of your persona, image, likeness and sound obtained in connection with Tests in whatever media used for the above-referenced purposes and irrevocably release, discharge and hold harmless the Released Parties from any and all claims, demands, suits, causes of action, damages, costs, losses, expenses and proceedings of any kind whatsoever, whether existing now or arising in the future, anywhere in the universe, that relate in any way whatsoever to the activities contemplated in this Section and/or the Released Parties’ exercise of the rights granted herein.

Without limiting the foregoing, to the extent applicable to the subject matter of this Agreement, you waive California Civil Code §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

5.5 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 TEST.

5.6 WARRANTY DISCLAIMER

The Platform and Tests are 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, TESTS, ELEMENTS AND ANY OTHER INTERACTION THAT YOU MAY HAVE WITH THE RELEASED PARTIES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM OR TESTS 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.

5.7 LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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 (C) 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). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RELEASED PARTIES’ AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE GREATER OF U.S. $100 OR THE AMOUNT PAID OR PAYABLE TO YOU FOR YOUR COMPLETION OF THE TEST AND DELIVERY OF THE TEST RESULTS.

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.

5.8 Indemnification

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 your failure to comply with this Agreement, or your violation of any applicable laws or regulations. The Released Parties shall promptly provide notice to you of any such claim, demand, liability, loss, damage, cost or expense.

5.9 Third-Party Links and Information

The Platform may contain links to third-party materials that are not owned or controlled by UserTesting. UserTesting does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Platform or share any content you develop on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement, including UserTesting’s Privacy Policy, does not apply to your use of such sites. You expressly relieve UserTesting from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Platform, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that UserTesting shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

5.10 DMCA Notice

Since we respect artist and content owner rights, it is UserTesting’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Platform, please notify UserTesting’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

  • An electronic or physical signature of a person authorized to act on behalf of the copyright owner;

  • Identification of the copyrighted work that you claim has been infringed;

  • Identification of the material that is claimed to be infringing and where it is located on the Platform;

  • Information reasonably sufficient to permit UserTesting to contact you, such as your address, telephone number, and, e-mail address;

  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and

  • A statement made under penalty of perjury that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

  
Attn:DMCA Notice
UserTesting, Inc.
Address:660 4th Street #246
San Francisco CA 94107
Email:copyright@usertesting.com

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying UserTesting and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with UserTesting’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, UserTesting has adopted a policy of terminating, in appropriate circumstances, Participants who are deemed to be repeat infringers. UserTesting may also at its sole discretion limit access to the Platform and/or terminate the accounts of any Participants who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.

GENERAL TERMS

6.1 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 Participant.

6.2 Changes to this Agreement

UserTesting reserves the right to discontinue the Platform or any Test at any time or otherwise make changes to the Platform and Services at any time, without notice, and without liability to you.

6.3 Waiver, Severability, Nonassignability

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, arbitrator 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.

6.4 Dispute Resolution; Mutual Arbitration Agreement with Class Action Waiver

As an initial matter, if you have a dispute with UserTesting, please contact support@usertesting.com so that we may attempt to resolve the issue.

This section contains an arbitration agreement, which, with limited exception, requires you and UserTesting to submit disputes and claims to binding and final arbitration on an individual basis. Please read it carefully as it affects your legal rights.

You and UserTesting mutually agree to waive your respective rights to resolution of all disputes or claims covered by this arbitration agreement in a court of law and instead agree to resolve any disputes and claims by binding arbitration on an individual basis.

To the fullest extent permitted by applicable law, you and UserTesting agree to arbitrate any and all disputes, demands, claims, or controversies (collectively, “claim” or “claims”) relating to, arising from or regarding this Agreement, your participation on the Platform, Tests or your relationship with UserTesting, including claims by UserTesting, claims against UserTesting, and claims against any current or former parent, affiliate, subsidiary, successor or predecessor of UserTesting, and each of UserTesting’s and these entities’ respective officers, directors, owners, agents or employees. To the fullest extent permitted by applicable law, this includes, but is not limited to, claims of discrimination, harassment, retaliation, breach of contract, wrongful termination and unfair competition, worker misclassification claims, compensation claims, wage and hour claims, tort claims, common law claims, and claims based upon any federal, state or local ordinance, statute, regulation or constitutional provision. Customers are third-party beneficiaries to this arbitration agreement

You and UserTesting agree that nothing in this arbitration agreement is intended to prevent either party from seeking and obtaining temporary or preliminary injunctive relief in court to prevent irreparable harm to their confidential information or trade secrets pending the conclusion of any arbitration.

This arbitration agreement does not apply to claims that have been expressly excluded from arbitration by a governing law not preempted by the Federal Arbitration Act. This arbitration agreement does not restrict or preclude you from communicating with, filing an administrative charge or claim with, or providing testimony to any governmental entity about any actual or potential violation of law or obtaining relief through a government agency process.

To the fullest extent permitted by applicable law, you and UserTesting agree that claims shall be resolved on an individual basis only, and not on a class, collective, or representative basis on behalf of other individuals to the fullest extent permitted by applicable law (“Class Waiver”). Any claim that all or part of the Class Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court. In no case may class, collective or representative claims proceed in arbitration on behalf of other individuals.

The parties understand and agree that the arbitration shall be conducted by a single neutral arbitrator through JAMS in accordance with the Streamlined Arbitration Rules & Procedures, or other applicable JAMS rules as agreed by the parties or directed by the arbitrator, which can be reviewed at http://www.jamsadr.com. To initiate an arbitration, you or UserTesting must submit a demand for arbitration to JAMS. Except as to the Class Waiver, the arbitrator shall determine arbitrability, including disputes about the formation, scope, applicability, enforceability or validity of the arbitration agreement. The arbitrator shall apply the applicable substantive law in deciding the claims at issue. Claims will be governed by their applicable statute of limitations and failure to demand arbitration within the prescribed time period shall bar the claims as provided by law. You and UserTesting understand and agree that the decision or award of the arbitrator shall be final and binding upon the parties.

You and UserTesting understand and agree that to the extent applicable, the arbitration of claims subject to this arbitration agreement shall be instead of a trial before a court or jury. The parties further understand and agree that they are expressly waiving any and all rights to a trial before a court or jury regarding any claims that they now have or which they may have in the future that are subject to arbitration under this arbitration agreement.

This arbitration agreement is enforceable under and governed by the Federal Arbitration Act. In the event that any portion of this arbitration agreement is held to be invalid or unenforceable, any such provision shall be severed, and the remainder of this arbitration agreement will be given full force and effect. This arbitration agreement shall survive the termination of the parties’ relationship.

You may choose to opt out of this arbitration agreement. To do so, you must send a letter to Office of the General Counsel, User Testing, Inc., 660 4th Street #246 San Francisco CA 94107 stating your intent to opt out of arbitration within 20 days of your acknowledgment of these Terms of Service.

6.5 Communications

You agree that UserTesting may communicate with you electronically or telephonically regarding this Agreement, Tests, security, privacy, and administrative issues. If UserTesting learns of a security system’s breach, it may attempt to notify you electronically by posting a notice on the Site, sending an email to you, or contacting you via any other means of communication for which you have provided contact information. You may have a legal right to receive a notice of breach in writing. To receive free written notice of a security breach or to withdraw your consent from receiving electronic notice, please contact us via the contact information provided at the end of this Agreement.

Questions and Comments

Questions, comments and requests in relation to this Agreement should be sent to support@usertesting.com.

Last updated: July 1, 2020