IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MUST NOT USE THE PLATFORM.
Overview of the UserQ Platform
If permitted under an applicable Order, Customer can recruit its own Contributors to perform the Test on the Platform, or Customer can request UserQ to source Contributors for Customer. Customer may also secure services from UserQ by way of a separate agreement (“Services”) to assist Customer in preparing Tests, recruiting Contributors, or providing other assistance related to Customer’s use of the Platform.
Contributors are neither employees nor agents of UserQ but are independent individuals who choose to use the Platform to engage in Tests. NONE OF USERQ, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS ENDORSE ANY CONTRIBUTOR OR TEST (INCLUDING, WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED BY ANY CONTRIBUTOR). USERQ EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE ACTS OR OMISSIONS OF CONTRIBUTORS, AND FOR THE CONTENT AND ACCURACY OF THE TESTS OR SESSIONS. CUSTOMER’S USE OF, OR RELIANCE, ON TESTS IS AT ITS OWN RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.
1.0 ACCESS TO THE PLATFORM
1.1 UserQ Orders
UserQ shall provide access to Platform and related Services as set forth in an applicable order form (each an “Order”). If Customer subscribes online rather than signing an order form, the terms and limitations of access otherwise included in an Order will be those defined on UserQ’s website.
Each Order will specify, to the extent applicable, specifics and limitations surrounding: (i) the UserQ products, services and support, (ii) the length of time Customer will have access to the Platform (the “Subscription Term”), (iii) the applicable fees and payment terms (iv) Third Party Products (defined below) to be furnished by UserQ to the Customer, if any and (v) additional options, restrictions, or terms and conditions, as applicable.
Any unused Tests or Services shall expire at the end of the Subscription Term.
1.2 Reseller Orders
If Customer obtains access to the Platform through a UserQ authorised reseller and no Order or other written agreement is entered into directly between Customer and UserQ, then Customer’s access to the Platform is subject to this Agreement, and in the event of conflict between this Agreement and terms between Customer and such authorised reseller, this Agreement will govern. UserQ is not responsible for a reseller’s actions, omissions, statements, or offerings.
1.3 Account Registration
To obtain access to the Platform, Customer will be required to register an account. When registering with UserQ, Customer must provide and maintain true, accurate, current and complete information and registration data. UserQ may send communications regarding the UserQ’s products and services to the registered account.
2.0 USE OF PLATFORM
Subject to this Agreement and the applicable Order, UserQ grants to Customer a non-exclusive, non-transferrable, right and limited license to access and use the Platform during the Subscription Term solely for the Purpose and for Customer’s internal business use.
2.2 Customer Responsibilities
2.2.1 No Reverse Engineering
Customer shall not (and shall not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Platform; or (ii) modify or create derivative works from the Platform, or (iii) introduce into the Platform any virus, worm, “back door,” Trojan Horse, or similar harmful code.
2.2.2 Seat Usage: Customer Responsibilities
Unless otherwise expressly permitted in an Order, each Seat must be assigned to a named employee or agent of Customer (each, a “User”) and may not be used by more than one individual. In the event a User is terminated from Customer’s organisation or otherwise reassigned to a new role or department, Customer may reassign a Seat to another employee or agent.
2.2.3 Platform Usage
Customer will (a) be responsible for Users’ compliance with this Agreement and Orders, (b) be responsible for the accuracy, quality and legality of Customer Property, the means by which Customer acquired Customer Property, Customer’s use of Customer Property, (c) use commercially reasonable efforts to prevent unauthorised access to or use of Platform and notify UserQ promptly of any unauthorised access or use, and (d) use the Platform only in accordance with this Agreement, Orders, our Content Policy and applicable laws and government regulations. Customer understands and agrees that UserQ may monitor all use of the Platform for security, operational, improvement and performance purposes.
Customer shall not do any of the following (each a “Restricted Activity”):
a.) permit access to, or use of, or make the Platform available to anyone other than as authorised in this Agreement or an Order;
b.) use the Platform for the benefit of anyone other than Customer or sell, resell, license, sublicense, distribute, make available, rent or lease the Platform in a service bureau or outsourcing offering;
c.) violate any law (including but not limited to third-party privacy rights), regulation or the Content Policy in connection with Customer’s i) use of the Platform or product, or ii) collection of information (including but not limited to Tests and Recordings);
d.) interfere with or disrupt the integrity or performance of the Platform or any associated data or information;
e.) copy or frame the Platform or any part, feature, function or user interface associated with the Platform, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes;
f.) communicate with UserQ-provided Contributors outside of the Platform, except as otherwise provided in this Agreement, or an Order or with evidence of express consent from the Contributor to be provided to UserQ upon request;
g.) require Contributor to accept any terms that may, in any way, alter the rights of UserQ or the obligations or duties of Customer under this Agreement;
h.) access or use the Platform or Contributors available through the Platform in order to build or benchmark a product or service competitive to UserQ;
3.0 PRICING & PAYMENT TERMS
3.1 Fees and Payment Terms
Customer shall pay the amounts (“Fees”) set forth in each Order in consideration for its access to and use of the Platform. All Orders are non-cancelable and Fees are non-refundable, except as otherwise provided in this Agreement.
Customer will be responsible for paying UserQ additional usage fees, as applicable, if Customer’s usage of the Platform exceeds the licenses and parameters set forth in the applicable Order. Additional usage fees (if applicable) may be found in the Order or on UserQ’s website.
When UserQ invoices Customer for Fees, Customer shall pay to UserQ the full amount in accordance with the payment terms set out in the Order. If Customer disputes an invoice, Customer must immediately notify UserQ and pay the portion of the invoice not in dispute.
Amounts payable to UserQ under this Agreement are payable in full to UserQ without deduction and are net of taxes (including any sales, use, excise, ad valorem, property, withholding, value added tax, or other tax and any income tax withheld at source), tariff, duty or assessment levied or imposed by any government authority (including without limitation any country, state, city, county, province, department, or other subdivision of government) that may be applicable to the purchase of products, software licenses or services hereunder. Customer shall pay and shall indemnify and hold UserQ harmless from all such taxes and customs duties. UserQ reserves the right to invoice for sales tax if required under the applicable taxing jurisdiction unless Customer provides UserQ with an exemption certificate or proof that Customer has self-assessed.
4.0 INTELLECTUAL PROPERTY
4.1 UserQ Property
“UserQ Property” means
- the Platform and Services;
- any UserQ products or other UserQ offerings;
- any pre-existing intellectual property and related rights of UserQ that are used in performance of UserQ’s obligations under an Order;
- Analyses (as defined below under the heading “License to UserQ”); and
- any modifications, derivative works or updated versions of the foregoing.
All rights, title and interest in UserQ Property shall remain the exclusive property of UserQ and/or its licensors. UserQ Property is the confidential and proprietary property of UserQ or third parties from whom UserQ has obtained the appropriate rights. No right or license is granted or implied under any of UserQ’s, or its licensors’, patents, copyrights, trademarks, trade names, service marks or other intellectual property rights beyond the rights and restrictions set forth in the Agreement. Further, subject to the limitations in Section 4.3, UserQ hereby assigns all right, title and interest it holds in the copyright in and to the Tests and Recordings to Customer.
4.2 Customer Property
“Customer Property” means: (a) all electronic data, information and material uploaded or inputted into the Platform by Customer; (b) the Tests; and (c) the Recordings.
All rights, title and interest in Customer Property shall remain the exclusive property of Customer and/or its licensors. Customer Property is the confidential and proprietary property of Customer or third parties from whom Customer has obtained the appropriate rights. No right or license is granted or implied under any of Customer’s, or its licensors’, patents, copyrights, trademarks, trade names, service marks or other intellectual property rights beyond the rights and restrictions set forth in the Agreement.
4.3 License to UserQ
4.3.1 Subject to Section 4.3.2, Customer hereby grants to UserQ a temporary, revocable, non-exclusive license to use Customer Property solely for the duration of the Agreement and solely for purposes needed to perform UserQ’s obligations in connection with the Agreement.
4.3.2 In addition to the license in Section 4.3.1, Customer hereby grants to UserQ a perpetual, irrevocable, royalty-free, non-exclusive, worldwide license to:
- use and incorporate into the Platform or products, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the Platform or Services;
- use, copy and create derivative works of the Tests and Recordings for the benefit of the Customer and the activities contemplated by this Agreement; and
- create analyses using data derived from use of the Platform and Services (“Analyses”);
provided that any derivative works and Analyses will not contain any Customer Confidential Information, and provided further that content covered by this subsection will not identify Customer or Customer Property and will only be used by UserQ in an anonymised, aggregated manner.
5.0 CONFIDENTIAL INFORMATION; ADDITIONAL TERMS FOR CERTAIN TESTS
5.1 Confidential Information
As between Customer and UserQ, the following information (“Customer Confidential Information”) shall be Confidential Information of Customer: (i) Customer Property, (ii) Tests, and Recordings, and (iii) other non-public information regarding Customer’s legal, financial or business affairs.
As between Customer and UserQ, the following information (“UserQ Confidential Information”) shall be Confidential Information of UserQ: (i) UserQ Property, and (ii) other non-public information regarding UserQ’s legal, financial, business affairs, technical features, functionality, product roadmap or security measures.
Notwithstanding the foregoing, neither Customer Confidential Information nor UserQ Confidential Information shall include information to the extent that it (a) is publicly known at the time of disclosure, (b) is received by a party to this Agreement (“Recipient”) from a third party without restriction on disclosure and without breach of a non-disclosure obligations, (c) is published or otherwise made known to the public by the owner of the information (“Discloser”), or (d) was generated independently without reference to the other party’s Confidential Information. Further, the parties agree that while the terms of this Agreement are confidential, the existence of the Agreement and nature of the relationship between the parties is not confidential.
Recipient shall not use Confidential Information of Discloser except to fulfill performance of the Agreement and in accordance with its terms. Recipient shall not disclose Confidential Information of Discloser to anyone other than its employees, contractors, advisors, and agents, who are bound by obligations of confidentiality as restrictive as those set forth in the Agreement.
Recipient will use at least the same standard of care to protect Discloser’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.
Notwithstanding the foregoing, each party may disclose Confidential Information of the other party to the extent required by a court of competent jurisdiction or other applicable governmental authority or as required by applicable law, provided that 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.
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.
5.2 Additional Requirements; Personal Information
UserQ’s DPA governs the parties’ rights and obligations related to “personal data” and “personal information” (as defined by applicable law) collected, used, transferred or otherwise processed under this Agreement. If required by applicable law, the parties will work together to ensure additional terms are agreed upon to satisfy such legal requirements.
Testing with minors is permitted subject to Customer complying with applicable law(s) and may require execution of a minor panelist addendum. For testing with minors in the U.S., Customer may collect “Personal Information” from minors as defined in the Children’s Online Privacy Protection Act (“COPPA”) provided that Customer is compliant with COPPA and any other applicable laws.
Customer may conduct testing involving Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), only after executing a Business Associate Agreement with UserQ. For any testing involving PHI, Customer agrees to take no action in violation of HIPAA and to obtain additional consent as described in Section 2.2.3.
Physical product testing is permitted provided that Customer complies with this Agreement and any additional terms requested by UserQ. Customer acknowledges and agrees that UserQ has no liability for any claims that arise from or are related to Customer’s physical product testing requested by Customer. Physical product testing will require consent from Contributor and may require a fully executed Physical Product Testing Addendum prior to any shipment of a physical product. UserQ reserves the right to refuse to allow the testing of physical products, in its sole discretion.
UserQ shall not be liable for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Customer as a result of any physical product testing initiated by Customer, for any breach of privacy laws (including, but not limited to, the GDPR, HIPAA and COPPA) or any fines, penalties or costs arising from the foregoing, to the extent caused by Customer’s failure to comply with this Agreement or applicable law.
6.0 WARRANTY DISCLAIMERS
USERQ EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE PLATFORM, THE TESTS OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SERVICES PROVIDED FREE OF CHARGE, IF ANY, ARE PROVIDED “AS IS,” AND EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
7.0 LIMITATION OF LIABILITY; WAIVER OF CONSEQUENTIAL DAMAGES
EXCEPT FOR EITHER PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR OF THE SUBSECTION 5.1 TITLED “CONFIDENTIAL INFORMATION”, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, GOODWILL, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (I) AMOUNTS PAYABLE BY CUSTOMER UNDER AN ORDER, (II) A BREACH BY CUSTOMER OF SECTION 2, (III) EITHER PARTY’S OBLIGATIONS UNDER SECTION 8, AND (IV) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO USERQ FOR THE USE OF THE PLATFORM OR SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY OR MULTIPLE CLAIMS. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8.1 UserQ Indemnification Obligations
UserQ agrees to indemnify and defend Customer against any claims, causes of action, damages, judgements, settlements, and/or costs to the extent it arises directly from a claim by a third party that the Platform infringes a valid US patent or any copyright or trade secret, of such third party. If any UserQ product or the Platform becomes or, in UserQ’s opinion, is likely to become, the subject of any claim or injunction preventing its use as contemplated herein, UserQ may, at its option (i) obtain for Customer the right to continue using the product or Platform, or (ii) replace or modify the product or Platform so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to UserQ, then UserQ may terminate this Agreement upon written notice to Customer and refund to Customer fees that were pre-paid for the then current term, pro-rated for the remainder thereof.
8.2 Customer Indemnification Obligations
Customer agrees to indemnify and defend UserQ against any third party claims, causes of action, damages, judgments, settlements, and/or costs to the extent they arise directly from a claim related to (i) any Customer Property or physical product testing initiated by Customer; and/or (ii) violation of any law, regulation or the Content Policy in connection with Customer’s use of either UserQ Property or information collected, used, transferred or otherwise processed by Customer, including but not limited to content and information in its Tests and Recordings.
UserQ shall have no liability or obligation hereunder with respect to any indemnification claim based upon (a) use of the Platform or any product in an application, environment or with devices for which it was not designed or contemplated, (b) modifications, alterations, combinations or enhancements of the Platform or any product not created by or for UserQ, or (c) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement.
8.4 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 in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim, provided that i) the indemnified party shall reserve the right to secure its own, separate counsel and participate in the defense at its own expense; ii) no settlement that affects the rights or reputation of the indemnified party shall be agreed to without that party’s consent, and iii) the indemnifying party may not settle any claim against the indemnified party unless it unconditionally releases the indemnified party of all liability.
9.0 GENERAL PROVISIONS
9.1 Suspension; Termination
This Agreement will commence on the Effective Date and remain in effect until terminated by either party in accordance with the Agreement. Upon notice of termination of this Agreement, this Agreement will terminate on the later of (i) the date of termination of the last Order subject to this Agreement, or (ii) termination of Customer’s access to the Platform. UserQ may accept Orders under this Agreement in its sole discretion.
Either party may terminate this Agreement for the other party’s uncured material breach. UserQ may suspend Customer’s access to the Platform or Service thirty (30) days after delivery of breach notice to the Customer if the breach is curable, or immediately if the breach is not curable or is for a violation of Section 2.2.1. UserQ will not be liable for any loss or damage resulting from the termination or suspension of Customer’s access to the Platform or Services due to Customer’s material breach of this Agreement. If UserQ breaches this Agreement and does not cure such breach within thirty (30) days of notice from Customer, Customer may terminate this Agreement and the applicable Order and receive a pro-rated refund of Fees prepaid under the applicable Order as its sole and exclusive remedy.
9.2 Third Party Products
UserQ may offer non-UserQ products or services (“Third Party Products”), or the Platform may enable access to Third Party Products, that may require acceptance of third party terms presented to the Customer. Linking to or use of Third Party Products constitutes Customer’s agreement with such terms. UserQ is not a party to such third-party agreements and is not responsible for such Third Party Products or any exchange of data between Customer and any non-UserQ provider. Access to Third Party Products by way of UserQ may be withdrawn at any time. UserQ has no responsibility for claims based on Third Party Products or items not provided by UserQ.
Neither party may assign this Agreement without the other party’s prior written consent, except in the event of a merger, acquisition or sale of substantially all of the assigning party’s assets. In the event of a merger, acquisition or sale of substantially all of the assigning party’s assets, the assigning party shall deliver notice to the other party of such assignment. Any attempt to assign this Agreement other than as permitted above will be null and void.
Notice shall be deemed given upon receipt via an email sent to “firstname.lastname@example.org”, personal delivery, delivery by a nationally recognized overnight delivery service (e.g., FedEx, UPS). Notices shall be sent to the address appearing on the applicable Order or an updated notice address delivered in writing (including by email to the address specified either above or on the Order) subsequent to an Order taking effect.
9.5 Governing Law
The Agreement shall be governed by and construed under the substantive laws, excluding choice-of-law rules of the State of California, United States. The parties hereby submit to the exclusive jurisdiction and venue in the United States District Court for the District of Northern California or in the state courts with competent jurisdiction located in San Francisco, California. The parties waive their right to trial by jury in any action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that UserQ may use Customer’s name in customer listings, on quarterly calls with its investors, and in marketing material. Customer agrees that UserQ may also share Customer information with its subsidiaries and affiliates for marketing and other business purposes.
9.7 Export Compliance
The Platform and Services are subject to export laws and regulations of the United States (“US”) and other jurisdictions. UserQ and Customer each represent that it is not named on any US government denied-party list. Customer is required to determine if any content, data or information uploaded by Customer is subject to US export control. Customer will not (i) permit any User to access or use the Platform in a US-embargoed or otherwise restricted (e.g. where an export license would need to be issued) country or region, or (ii) otherwise access or use the Platform or upload any content, data or other information in violation of any US export law or regulation. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
The parties are independent contractors. This Agreement will not be construed to create or imply any partnership, agency, or joint venture. Unless expressly provided in this Agreement, no failure or delay by any party in exercising any right, power, or remedy shall operate as a waiver of any such right, power, or remedy. 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. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control. Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations. UserQ maintains business conduct and related guidelines covering conflicts of interest, market abuse, anti-bribery and corruption, and fraud. UserQ and its personnel comply with such policies and require contractors to have similar policies.
9.9 Subsidiary Orders
“Subsidiary” means any business entity that owns more than fifty percent (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 with Customer. A Subsidiary may place their own Order(s) under the terms of this Agreement. By entering into an Order, a Subsidiary agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
9.10 Entire Agreement
The Agreement constitutes the complete and exclusive agreement between Customer and UserQ with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. UserQ expressly objects to any additional or conflicting terms in any Customer purchase order or other Customer form. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Questions, comments and requests in relation to this Agreement should be sent to email@example.com
Last updated: August 29, 2022