The terms of service ("Agreement") forms a legal contract between you ("Visitor") and User Testing, Inc. ("UserTesting") that governs your access and use of the Peek by UserTesting website ("Peek" or "Site"). By using any of the Site or any applicable related professional services ("Services"), Visitor agrees to be bound by this Agreement. If Visitor is using the Site or Services on behalf of an organization, Visitor agrees to this Agreement for that organization and representing to UserTesting that Visitor has the authority to bind the organization to their Agreement (in which event, "Visitor" will refer to the organization). Visitor may use the Site and services only in compliance with this Agreement and only if Visitor has the power to form a contract with UserTesting and is not barred under any applicable laws from doing so.
IF VISITOR DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, VISITOR MUST NOT USE THE PEEK SITE OR SERVICES.
UserTesting has developed a free software platform and related services that enables Visitor to run limited/non-specific user experience and usability tests ("Peek Tests") and allows testers selected by UserTesting ("Testers") to perform and record Peek Tests for the Visitor’s benefit ("User Testing"). The Testers are neither employees nor agents of UserTesting, but are independent third-party service providers using Peek to provide services to Visitor by participating in User Testing. UserTesting expressly disclaims all liability for the acts or omissions of the Testers.
Visitors must provide a valid name, phone number and company email prior to running a test on Peek. Visitors are limited to three (3) Peek Tests a month. User Testing reserves the right to monitor your usage on Peek. User Testing reserves the right to terminate a Visitor’s access to Peek if User Testing discovers that Visitor is fraudulently providing false information or using multiple email accounts to bypass the usage restrictions.
Since UserTesting's panel is primarily English speaking, UserTesting will generally reject non-English website and app submissions. UserTesting also reserves the right to reject any Peek submission, including but not limited to websites or apps with content that is deemed to be pornographic, profane, adult, violent, promoting terrorism, spam, malware, or will in any way damage or offend members of our panel.
Visitor will ensure Seat License holders (a) comply with this Agreement; (b) use Peek in compliance with all applicable laws, rules and regulations; and (c) do not permit direct or indirect access to the Peek Site in a way that circumvents a contractual license limit. Visitor will be liable for unauthorized access caused by the negligence or willful misconduct of a Seat License holder (including Visitor employees, subcontractors, and/or agents who are sharing access under one Seat License)
Peek is a free for all Visitors to use under the Agreement. UserTesting reserves the right to elect to charge a fee for Peek at its discretion with notice of such change provided on the Site.
"UserTesting Property" means any pre-existing intellectual property and related rights of UserTesting that are utilized by UserTesting in performance of its obligations under the Agreement such as computer software, templates for reports or methodologies. UserTesting Property also includes any elements of Services. UserTesting Property will be the sole property of UserTesting and includes, but is not limited to, all Deliverables. UserTesting Property shall be deemed to be UserTesting’s Confidential Information. Under the terms and conditions of this Agreement, UserTesting hereby grants Visitor a perpetual, worldwide, royalty-free, non-exclusive license to use the UserTesting Property solely as incorporated in, and including, the Deliverables for Visitor’s internal business purposes.
All information obtained by UserTesting from Visitor and all Visitor Property, as incorporated into the Deliverables, shall become UserTesting's Property. All materials, sites, software, and applications provided or made available by Visitor for Peek Tests shall be deemed "Visitor Property" for purposes of the Agreement. For any rights in the Visitor Property that is unable to be transferred to UserTesting, Visitor grants to UserTesting a permanent, irrevocable, non-exclusive license to use Visitor Property as needed for any and all use of the Deliverables by UserTesting, at UserTesting’s sole discretion.
Unless otherwise agreed to in writing by an authorized representative of UserTesting, all original materials produced by UserTesting pursuant to Visitor’s use of Peek, including all Peek Test videos, shall belong exclusively to UserTesting. Pursuant to the Agreement, Visitor hereby irrevocably assigns any and all intellectual property rights in such materials to UserTesting, and waives all moral rights in copyright in the materials, for the entire duration of the copyright. No rights are reserved to Visitor. In addition, Visitor acknowledges and agrees that the Deliverables are UserTesting’s Confidential Information and the exclusive property of UserTesting.
Each party ("Recipient") agrees to retain in confidence any non-public information provided to it by the other party ("Discloser") that is received outside of a Peek Test, and is marked, labeled or otherwise designated as confidential or proprietary, or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Discloser ("Confidential Information"). Without limiting the generality of the foregoing, Confidential Information will include, any Personally Identifiable Information ("PII") shared in connection with this Agreement or in any Peek Test. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is publicly known at the time of disclosure, (b) is received by 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 Discloser, (d) was generated independently without reference to the other party's Confidential Information, (e) Recipient rightfully knew prior to receiving such information from the Discloser, or (e) is, a part of or in its entirety, a Peek Test (excluding any applicable PII within). Recipient shall not disclose to any third party or use any Confidential Information disclosed to it by Discloser except to Recipient’s personnel who are required to have access to the Confidential Information to fulfill performance of this Agreement, provided that all such personnel shall be obligated in writing to maintain the confidentiality of any such Confidential Information, or as otherwise expressly permitted in this Agreement, and provided further that Recipient shall obtain Discloser’s written consent (in each instance) prior to disclosing any personally identifiable information received from or through Discloser. Recipient will use at least the same standard of care with the Discloser's Confidential Information as it does with its own Confidential Information to maintain the confidentiality of the Confidential Information in its possession or control, but in no event with less than reasonable care. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by 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; and (ii) on a "need-to-know" basis to its financial advisors, lawyers or other advisors who are obligated to maintain the confidentiality of such information. 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 will be entitled to seek injunctive relief to enforce the provisions of this Section.
Visitor acknowledges that the Site, Peek Tests and Services are not intended for the collection and processing of "Personally Identifiable Information" (defined as information that can be used to identify a particular individual, including but not limited to, name, date of birth, social security number, email, postal address, phone number and any other information that, either alone or in combination with other data, could be used to identify or contact a particular person). Visitor acknowledges the risks inherent in the collection of such Personally Identifiable Information, and Visitor disclaims all liability against UserTesting for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Visitor as a result of the collection, use, transfer, or other processing of Testers’ Personally Identifiable Information supplied by a Tester in connection with any Visitor Peek Tests.
Visitor agrees that Visitor may not communicate directly with Testers. Visitor may not contact Testers or request that Testers contact Visitor through any means. Visitor may not solicit or hire any Tester to perform usability testing or similar user experience and usability studies directly for Visitor for a period of one year from the completion of the most recent Peek Test conducted on Peek with a Tester. Any such solicitation or hiring will be considered a material breach of this Agreement and may result in the termination of Visitor’s access to Peek in addition to such other remedies available at law or in equity.
This Agreement will apply commencing on the Effective Date of the first Peek Test run by Visitor and will continue unless and until UserTesting gives Visitor written notice of termination or Visitor chooses to stop running Peek Tests. Upon notice of termination Visitor will no longer have access to the Peek or any of the related Services.
UserTeseting shall have the right to terminate Vistor’s access and use of Peek at any time, for any reason, immediately upon notice, which shall be provided on the Site. UserTesting shall be relieved of any further obligations hereunder upon the effective date of the termination.
Upon the expiration or termination of this Agreement, the parties’ respective rights and obligations in the following provisions shall survive: 3.0 ("Pricing and Payment Terms") (but only with respect to undisputed amounts due and owing that accrued before the termination or expiration of this Agreement and Section 3.2 "Taxes"); 4.0 ("Intellectual Property"), 6.0 ("Visitor Communications"), 7.3 ("Survival"), 8.3 ("Warranty Disclaimer"), 9.0 ("Limitation of Liability and Waiver of Consequential Damages"), 10.0 ("Indemnification") and 11.0 ("General Provisions").
UserTesting represents and warrants that the Services provided by UserTesting, if any, shall be provided in a professional and workmanlike manner. UserTesting’s sole and exclusive liability for any breach of the above warranty shall be limited to re-performance of the Services. UserTesting also hereby represents and warrants that (a) UserTesting has full power and authority to enter into the Agreement and this Agreement will constitute a valid and binding obligation of UserTesting; and (b) UserTesting’s execution of the Agreement does not violate any other agreement to which UserTesting is subject.
Visitor hereby represent and warrants that Visitor (a) has full power and authority to enter into the Agreement and the terms of conditions of this Agreement will constitute a valid and binding obligation of Visitor; (b) will use the Deliverables and the Services in compliance with all applicable laws, rules and regulations (including, but not limited to, applicable privacy laws and regulations); (c) will use the Deliverables and Services solely for qualitative research purposes; and (d) will not use Peek for the purpose of distributing computer viruses, malware, spyware or similar items to Tester’s computers or other devices.
OTHER THAN AS SET FORTH IN THIS AGREEMENT, USERTESTING EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE SITE, THE PEEK TESTS OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USERTESTING PROVIDES THE SERVICES AND DELIVERABLES SOLELY FOR INFORMATIONAL PURPOSES TO VISITOR. VISITOR IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.
IN NO EVENT WILL USERTESTING BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT USERTESTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USERTESTING’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO FIFTY (50) U.S. DOLLARS.
Visitor agrees to indemnify, defend and hold UserTesting harmless against any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Tester as a result of (a) the collection, use, transfer, or other processing of Testers’ Personally Identifiable Information when specifically requested by Visitor in connection with any Visitor Peek Tests; (b) any violation of applicable laws, rules or regulations in using Peek and the Services; (c) infringement of any intellectual property rights of such third party that is specifically in connection with the use of Peek and the Services; and (d) any breach by Visitor of any representations, warranties, covenants or other obligations herein.
Visitor may not assign this Agreement without the UserTesting’s prior written consent except in the event of a merger, acquisition or sale of substantially all of an assigning party’s assets. Any attempt to assign this Agreement other than as permitted above will be null and void.
To obtain access to Peek, Visitor may be required to obtain an account with UserTesting by completing a registration form which includes, but is not limited to, full name, phone number and company email address. When registering with UserTesting Visitor must: (a) provide true, accurate, current and complete information. By registering with Peek, Visitor agrees that UserTesting may send Visitor communications or data regarding the UserTesting’s Site or Services, including but not limited to promotional information and materials regarding UserTesting's products and services, via electronic mail.
Notice shall be deemed given upon receipt via e-mail, personal delivery, delivery by a nationally recognized overnight delivery service (e.g., FedEx), or postage prepaid by certified or registered mail, return receipt requested. Notices to UserTesting will be sent to: Grace Pan, UserTesting, Inc., 2672 Bayshore Parkway, Suite 703, Mountain View, California 94043. Notices to UserTesting must also be sent to: Law Department, UserTesting, Inc., 2672 Bayshore Parkway, Suite 703, Mountain View, California 94043. Unless noted otherwise by Visitor, notices to Visitor will be given through the Peek Site.
The Agreement shall be governed by and construed under the laws of the State of California without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 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 Clara, California, and agree to have any action or proceeding between the parties or their successors, or upon, concerning, or related to this Agreement, any Order(s), the Terms and Conditions or any other agreement, transaction or dealing between the parties, heard by a judge of such courts. Accordingly, the parties waive their right to trial by jury in any such action or proceeding.
In addition, to the extent permitted by law, Visitor agrees that Visitor will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that Visitor may have against UserTesting. Visitor agree to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. Visitor agrees to pay the attorney's fees and court costs that UserTesting incurs in seeking such relief. This provision, preventing Visitor from bringing, joining or participating in class action lawsuits, is an independent agreement and does not constitute a waiver of any of Visitor’s rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided below.
The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.
If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
UserTesting will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.
Visitor agrees that UserTesting may use Visitor’s company name and logo on UserTesting’s client lists on UserTesting’s Site, website and marketing materials, and to promote UserTesting’s service in any way.
This Agreement constitutes the complete and exclusive agreement between Visitor and UserTesting with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. UserTesting expressly objects to any additional or conflicting terms proposed by Visitor in a Visitor purchase order or otherwise. No Visitor form shall modify the terms of this Agreement. This Agreement may only be modified or amended by a written amendment executed by both parties.
Questions, comments and requests in relation to this Agreement should be sent to firstname.lastname@example.org, or via regular mail to:UserTesting, Inc.