Participant Terms and Conditions
Effective Date: January 9, 2023
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. Please review this section carefully, as it affects your ability to have your rights determined by a court or in the form of a class action.
BY USING OR ACCESSING OUR SERVICES, YOU ARE ACCEPTING THESE TERMS AND REPRESENTING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT USE OR ACCESS OUR SERVICES. BY USING OR ACCESSING OUR SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD, OR AT LEAST 16 YEARS OLD WITH THE CONSENT OF YOUR PARENT OR GUARDIAN.
- Services Generally
1.1 Overview of the Services
The Services enable UI’s customers (“Researchers”) to post opportunities (“Projects”) to participate in Research Sessions and to source individuals (“Participants”) to apply to Projects. A “Research Session” is an interview, survey, testing, or other research session in which Participants provide feedback to or otherwise interact directly with Researchers outside of the Services.
1.2 Proprietary Rights
UI owns and retains all right, title and interest in and to: (i) the Services and all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other technology developed in connection with the Services or support; and (iii) all intellectual property rights related to any of the foregoing. Nothing in this Agreement shall be construed as granting Participants any rights in or to the Services, other than the right to use the Services as expressly stated in these Terms. Unless otherwise noted, all UI content within the Services is the property of us and/or our affiliates or licensors and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws.
1.3 License Grant
Subject to these Terms and any other agreement between you and us, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use our Services solely in the manner enabled by us. Your license to use our Services is automatically revoked if you violate these Terms, you do not agree to the then-current version of these Terms, or we terminate these Terms or your account. From time to time, we may upgrade our Services or make improvements to our Services. You agree that these Terms will apply to any such upgrades or improvements. The foregoing license grant is not a sale of any aspect of our Services or a sale of a copy of any aspect of our Services, and we and our partners and suppliers retain all right, title and interest in our Services. We reserve all rights not expressly granted under these Terms.
We may, at any time and in our sole discretion, temporarily or permanently (i) alter, suspend, discontinue, terminate or subcontract our Services in whole or in part, at any time and for any reason, without notice, or (ii) add or remove features, including without limitation making free services into paid services and vice versa. Our Services may also periodically become unavailable due to maintenance, technical issues, or other reasons. You understand and agree that UI may monitor all use of the Services for security, operational, improvement and performance purposes.
1.4 Third-Party Beneficiary
Researchers are express and intended third-party beneficiaries of these Terms. To the extent that your breach or threatened breach of these Terms causes any damage or liability to any such Researcher, such Researcher shall have the right to enforce any provision of these Terms. Except as otherwise expressly provided in these Terms, there shall be no-third party beneficiaries to these Terms.
- Use of the Services
2.1 Account Creation and Management
In order to use our Services, you may be required to create an account with a username and password or may be permitted to register for an account using certain third-party accounts or login credentials, such as your Facebook or LinkedIn credentials (collectively, “Login Credentials”). You agree to provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update information to keep it accurate, current, and complete. You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your account. You agree to notify us immediately if you believe that your Login Credentials have been or might be used without your permission so that appropriate action can be taken. We are entitled to act on transaction instructions received when your Login Credentials are used, regardless of whether use of the Login Credentials has been authorized by you. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials.
Your account is nontransferable except with UI’s written permission and in line with UI policies and procedures.
If you connect to our Services with one or more third-party social media accounts, we may receive and store certain information related to that account. You may have the ability to control what information is shared from your linked social media account by adjusting the privacy settings for that account.
In order to use our Services, you must have a device with Internet access that can access our Services. We are not responsible for any charges you incur from your telecommunications carrier or otherwise as a result of your use of our Services. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, software, operating systems, networking, web servers and the like.
2.3 Acknowledgment to Receive Communications
When you utilize the Services, or send emails, SMS messages, or other digital communications to us, you are communicating with us electronically. You consent to receive communications from us electronically. We may communicate with you by email, SMS or by posting notices on the Services. You understand and agree that you may receive transactional emails and text messages from us related to the Services or your use of the Services, such as study confirmations and reminders. Any text messages we send to you are subject to UI’s SMS Terms and Conditions, which are incorporated into these Terms. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms.
UI may solicit and you may provide to UI suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (“Feedback”). Nothing in these Terms shall restrict UI’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without compensating or crediting you. By sending us Feedback, you represent and warrant that (a) you have the right to disclose the Feedback, (b) the Feedback does not violate the rights of any other person or entity, and (c) your Feedback does not contain the confidential or proprietary information of any other person or entity. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against UI and its users any claims and assertions of any moral rights contained in such Feedback. This section shall survive any termination of your account, these Terms, or your participation in the Services.
- Your Obligations
3.1 Participant Information
You represent and warrant that (i) all information you provide to UI and/or any Researcher will be accurate and complete, (ii) you have the right to provide such information and have obtained all necessary consent where applicable, (iii) the information does not violate the rights of any other person or entity, (iv) the information does not contain the confidential or proprietary information of any other person or entity, and (v) you have no agreement with or obligations to any third party that would prohibit your use of the Services in the manner so used. You acknowledge and agree that your submission of any personal information to UI and/or any Researcher is voluntary and entirely at your own risk. You hereby grant to UI and such Researcher (as applicable) a perpetual, royalty-free, worldwide right and license to copy, display, make derivative works of and otherwise use such information to provide the Services in accordance with these Terms.
You further acknowledge that as a condition of your participation in a Research Session, the applicable Researcher may require you to agree, among other things, (a) that any and all information expressed or communicated by you during the Research Session may be freely used and disclosed by the Researcher without restriction or compensation to you (other than the incentive, if any, offered in connection with the Research Session), and (b) to assign to the Researcher all intellectual property rights in and to such information. You agree to act in a professional manner at all times in connection with your participation in a Research Session.
3.2 Prohibited Information
You agree not to submit any of the following categories of information to or through the Services, even if requested by a Researcher:
-Financial account information (e.g., bank account number, information subject to the Payment Card Industry Data Security Standard (PCI DSS));
-Government-issued identification number (e.g., Social Security number, driver’s license number, passport number);
-Online login credentials (e.g., authentication/authorization credentials, password, security question and answer);
-Biometric identifiers (e.g., genetic data, fingerprints, facial modeling data); or
-Health and genetic information subject to enhanced protection under applicable law (e.g., Protected Health Information as defined in the Health Insurance Portability and Accountability Act (HIPAA)).
If you submit any of the foregoing categories of information to the Services, it will be considered unauthorized use of the Services, and UI will have no responsibility or liability in connection therewith.
You agree to protect and keep confidential all information relating to Projects and Research Sessions that you participate in or that are otherwise made available to you through the Services, whether in hardcopy, electronic or oral format (“Confidential Information”). You shall not, except to the extent permitted by these Terms or expressly authorized by UI or the applicable Researcher in writing, use or disclose such Confidential Information. Confidential Information includes, without limitation, the identity of any Researcher affiliated with a Project or Research Session, the specific terms of or activity related to your participation in a Project or Research Session, and the feedback, information, or responses you provide or receive in connection with a Project or Research Session.
Notwithstanding the foregoing, you may disclose Confidential Information to the extent compelled by law or the order of a court or other governmental body, provided that you notify UI and the applicable Researcher promptly and in writing (to the extent legally permitted) and reasonably cooperate with UI and/or the Researcher in any lawful action to contest or limit the scope of such required disclosure.
Research Sessions may also be protected under the terms of a confidentiality agreement between you and the applicable Researcher, in which case in the event of any conflict between the terms of such agreement and this Section 3.3, the terms of such agreement shall supersede this Section 3.3.
You acknowledge that any actual or threatened breach of this Section 3.3 may cause irreparable harm to UI and/or a Researcher, the extent of which may be difficult to ascertain. Accordingly, you agree that, in addition to all other remedies available at law or in equity, UI and/or such Researcher will be entitled to seek an immediate injunction against any breach or threatened breach of this Section 3.3 without the posting of any bond and without proof of actual damages.
3.4 Usage Restrictions
You shall not, nor shall you authorize or facilitate any attempt by another person to:
-Use the Services in any manner or for any purpose other than as expressly provided in these Terms;
-Use the Services in an unlawful or fraudulent manner or for any unlawful or fraudulent purpose;
-Have an account or use any of the Services if UI has previously removed your account or UI previously banned you from accessing any of the Services;
-Take any action that may unreasonably encumber the Services’ infrasctructure, including actions that damage, disable, overburden, impair or interfere with any other party’s use of the Services;
-Use another person’s UI account, misrepresent yourself, your identity, qualifications, characteristics, or other information;
-Circumvent, remove or otherwise interfere with any security-related features of the Services;
-Access, tamper with, or use non-public areas of the Services, UI’s computer systems and infrastructure, or the technical delivery systems of UI’s providers;
-Introduce viruses, worms, time bombs, Trojan horses, malicious code, or other malware to the Services;
-Reproduce, modify, distribute, create any derivative works from, reverse-engineer, or attempt to gain unauthorized access to or attempt to discover the underlying source code or structure of the Services;
-Use any robot, spider, site search/retrieval application or other automated device, process or means to access, retrieve, scrape or index any portion of the Services;
-Resell, assign, sub-license, disclose, distribute, or otherwise transfer or make available the Services in any form, in whole or in part, to any third party;
-Remove or alter any copyright notices within the Services;
-Maintain or use any false identity, or otherwise fail to apply to a Project and/or participate in a Research Session using your real identity and accurate contact, demographic and other information;
-Submit any personal information or other information which we determine in our sole discretion to have been false, inaccurate or otherwise invalid;
-Post, upload, transmit or otherwise disseminate through the Services information that is unlawful, harmful, threatening, abusive, harassing, hateful, disparaging, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by UI in its sole discretion;
-Post, upload, transmit or otherwise disseminate through the Services information that infringes a third party’s copyright, trademark, trade secret or other intellectual property rights;
-Post, upload, transmit or otherwise disseminate through the Services information that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
-Harass, threaten, stalk, intentionally embarrass, invade the privacy of, or cause distress to any person, including without limitation posting personally identifying or otherwise private information about a person without their consent;
-Collect, harvest, or publish any personally identifiable information, including, but not limited to, name or other account information, from other users of the Services without their express permission;
-Use the communication systems provided by the Services for any reason not explicitly authorized by these Terms, including commercial solicitation purposes;
-Engage in unsolicited advertising, marketing, or promotion of products or services;
-Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Services; or
-Attempt to indirectly undertake any of the foregoing.
- Payments and Taxes
Researchers may choose to provide an incentive to Participants (each, an “Incentive”) to complete Research Sessions in their sole discretion in the manner of their choosing, but you acknowledge and agree that UI has no independent obligation to provide any Incentives to you in connection with your participation in a Research Session. If a Researcher chooses to distribute an Incentive directly to you, UI may (but is not obligated to) provide reasonable assistance to you regarding redemption of the Incentive for up to 90 days after the end date of the relevant Research Session.
At the request of a Researcher, UI may also facilitate distribution of Incentives to Participants through the Services. In that event, UI will enable you to redeem the Incentive upon the Researcher’s confirmation of your completion of the Research Session and in the form enabled by the Services (e.g., digital gift cards). Redemption of Incentives through the Services is provided to Participants solely as a convenience, and UI is not liable to you for your failure to redeem an Incentive, failure of delivery of an Incentive due to incorrect information provided by you, or for any defects in an Incentive.
You acknowledge and agree that you may forfeit some or all of any Incentives offered in connection with a Research Session if (i) you violate these Terms (as determined by UI in its sole discretion), including without limitation Section 3 (Your Obligations), (ii) you do not satisfactorily complete the Research Session (as determined by the Researcher in its sole discretion), or (iii) you delete your account prior to redeeming the Incentive.
4.2 Cancellation Fees
If a Researcher cancels a Recruit Participant after that Participant has been scheduled and does not reschedule such Participant within a reasonable period, UI may, but has no obligation to, charge the Researcher a cancellation fee and pay such cancellation fee to the applicable Participant. The amount and timing of any such cancellation fee shall be determined by UI in its sole discretion.
You are solely responsible for understanding and evaluating any potential tax liability related to Incentives paid in connection with Research Sessions and for determining any potential income reporting pursuant to the requirements of local, state, federal or other applicable law. If you are a Participant with U.S. tax obligations, you may be required to provide UI with W-9 information, including without limitation your Social Security Number. Where UI requests such information, you agree to provide it promptly. UI is not responsible in any way for your failure to report taxable income or remit any taxes that may be due to any taxing authority.
5.1 Platform Only
UI does not assume any responsibility for the accuracy or reliability of any information that Participants or Researchers submit to the Services. UI does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any Project or Research Session, or any communication between Participants and Researchers. Participants and Researchers are independent third parties over whom UI has no control and for whom UI takes no responsibility. It is your responsibility to take all necessary precautions in your interactions with Researchers in connection with your use of the Services.
Researchers are not permitted to re-contact any Participant who previously applied for a Project unless all communication is handled through the Services, or to take any action that encourages or solicits any Participant to participate in Research Sessions without use of the Services. We encourage you to report any violations of the foregoing via email to firstname.lastname@example.org. You acknowledge and agree that your participation in any Research Session without use of the Services is entirely at your own risk.
5.2 Third Party Sites
Our Services may contain links to third-party sites, tools, and integrations which are independent of UI and are governed by their own terms and privacy policies. You acknowledge and agree that UI does not control and has no liability for such third-party sites, including their content, security, functionality, operation, or availability. These links are provided “as is” and “as available” without any warranties, representations, or conditions of any kind. In addition, a link to any third-party site does not imply that we endorse or accept any responsibility for the content or use of such site.
5.3 Warranty Disclaimer
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ALL CONTENT ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UI DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. UI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES, NOR DOES UI MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. YOUR USE OF OR RELIANCE UPON THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION. UI HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE SERVICES. UI EXPLICITY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THE SERVICES, THE PROJECTS, OR RESEARCH SESSIONS OFFERED ON OR THROUGH THE SERVICES AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON OR THROUGH THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHERS ON OR THROUGH THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY RESEARCHERS OR THEIR SERVICE PROVIDERS. YOU UNDERSTAND THAT UI HAS NO OBLIGATION TO VERIFY THE STATEMENTS OF RESEARCHERS ON THE SERVICES OR TO REVIEW OR VET ANY PROJECTS. UI MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF OTHERS ON THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHERS ON OR THROUGH THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. UI EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY PARTICIPANTS, RESEARCHERS, OR THIRD PARTIES.
- Indemnification; Liability
You agree to indemnify and otherwise hold harmless UI, its officers, directors, employees, and agents from and against any claims, damages, losses, liabilities and all costs and expenses of defense, including without limitation fees for attorneys and other professional advisors, resulting directly or indirectly from a claim or proceeding by a third party arising out of, relating to, resulting from, or otherwise in connection with (i) your access to or use of the Services, (ii) the content you submit using the Services, (iii) your breach of these Terms or any representation, warranty, or agreement referenced in these Terms, (iv) your violation of applicable law or regulation, (v) your negligence or willful misconduct, (vi) your violation of the rights of any third party, including intellectual property right, right of publicity, confidentiality, property, or privacy, and/or (vii) any dispute or other issue stemming from your interaction with any third party in relation to the Services, including a Researcher.
UI reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations) and you agree to cooperate with our defense of that claim. If the defense or settlement is assumed by you, UI may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim that you are defending on behalf of UI without UI’s prior written consent.
This provision does not require you to indemnify UI for any unconscionable commercial practice by such party, or for such party’s gross negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
You agree that the provisions in this section will survive any termination of your account, these Terms, or your participation in the Services.
6.2 Limitation of Liability
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL UI BE LIABLE TO YOU OR ANY THIRD PARTY FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR YOUR USE OF THE SERVICES, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UI’S AGGREGATE LIABILITY TO YOU UNDER THESE TERMS EXCEED THE GREATER OF (I) $100.00 USD OR (II) THE INCENTIVES PAID OR PAYABLE TO YOU IN THE PRECEDING SIX-MONTH PERIOD.
6.3 Release from Liability
To the fullest extent permitted by law, you agree to release UI, its officers, directors, employees, and agents from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with: (i) disputes between or among Participants and/or Researchers; (ii) third-party sites and services, including without limitation content found on such sites and services; and (iii) the unauthorized access to, or unauthorized use or alteration of, any communications or information stored under or relating to your account.
Without limiting the foregoing, to the extent applicable, you hereby waive California Civil Code § 1542 and any similar statute or principle of common law. California Civil Code § 1542 provides: “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.”
- Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
If you have a dispute with UI or if UI has a dispute with you and such dispute cannot be resolved informally, such dispute will be resolved on an individual basis in accordance with the provisions set forth below:
7.1 Initial Dispute Resolution
The parties shall use their best efforts to engage in informal dispute resolution to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration. To adequately engage in this initial dispute resolution process, each party must notify the other party, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to (a) your email address on file with UI, or (b) email@example.com, whichever is applicable (“Dispute Notification”). The party receiving the Dispute Notification has thirty (30) days from receipt of the Dispute Notification to respond. The other party then has 15 days to reply to the response.
7.2 Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 45 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. This agreement to arbitrate is a contract governed by the Federal Arbitration Act, 9 U.S.C. section 1, et seq., and evidences a transaction involving commerce. Specifically, all claims arising out of or relating to these Terms (including their formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Services and any services made available through the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class or representative actions and except that each party will be permitted at least one deposition unless forbidden by JAMS. If for any reason JAMS is unable to administer arbitration, either party may apply to a court to appoint an arbitrator pursuant to 9 U.S.C. section 5.
Except as explicitly set forth in this Section 7, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be written and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require UI to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, UI will pay the remaining filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorneys’ fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 7 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in New York, New York. You and UI agree to submit to the personal jurisdiction of any federal or state court in New York, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
7.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND UI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Notwithstanding any other provision of these terms, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
7.5 Exception – Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
7.6 30-Day Right to Opt Out
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email address: firstname.lastname@example.org or to User Interviews, Inc., Attn: Legal Department, 228 Park Ave S, PMB 38712, New York, NY 10003. The notice must be sent within 30 days of January 9, 2023, or your first use of the Services, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, UI also will not be bound by them.
7.7 Changes to this Section
UI will provide 30 days’ notice of any changes affecting the substance of this Section 7. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which UI does not have actual notice are subject to the revised clause.
- Other Terms and Conditions
8.1 Suspension or Termination
You acknowledge that we may, in our sole and absolute discretion, at any time and for any or no reason without prior notice or liability, suspend, limit, block, or terminate your account (in whole or in part) or these Terms and the rights afforded to you hereunder with or without prior notice. Upon termination of your account, your right to use the Services will immediately cease. Furthermore, if you fail to comply with any provision of these Terms, then these Terms and any rights afforded to you hereunder will terminate automatically, without any notice or other action by us. You agree that we are not liable to you or any third party for any termination of your access to our Services.
8.2 Changes to the Terms
Except for Section 7 (providing for binding arbitration and waiver of class action rights), UI reserves the right, at its reasonable and sole discretion, to modify or replace these Terms at any time. You are responsible for reviewing and becoming familiar with any such modifications. Changes will be effective immediately unless otherwise provided. If we determine a revision to the Terms, in our sole discretion, is material, we will notify you as required by law. Use of or access to the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified. If you do not accept the changes, you must discontinue using and accessing the Services.
8.3 California Residents
If you are a California resident, in accordance with California Civil Code § 1789.3, you may reach 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. Hearing-impaired persons can reach the Complaint Assistance Unit at 1-800-735-2929 (TTY).
8.4 Non-U.S. Participants
Our Services may only be used by individuals who are 18 years of age or older and can form legally binding contracts under applicable law, or by individuals who are 16 years of age or older with the consent of their parent or guardian. If you are a parent or guardian and you discover that your child has created an unauthorized account on our Services, please email us at email@example.com regarding such unauthorized account.
9.1 Section Headings
Section headings are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of these Terms.
9.2 Entire Agreement
These Terms contain the complete and exclusive statement of the mutual understanding of the parties and supersede all prior written and oral agreements, communications and other understandings relating to the subject matter of these Terms, other than any click-through or end user license agreement provided by us.
9.3 Waiver, Severability, Assignment
The failure of UI to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be modified and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect. You may not assign or delegate any rights or obligations under these Terms in whole or in part, and any such attempted assignment or delegation shall be void and without effect. UI may freely assign or delegate all rights and obligations under these Terms, in whole or in part.
9.4 Relationship of the Parties
No partnership, joint venture, or employment relationship is intended or created by these Terms, either with us or any other party, including any Researcher. Nothing in these Terms will constitute either party as the agent of the other party for any purpose or entitle either party to commit or bind the other party in any manner.
All notices provided by UI to you under these Terms may be delivered by an internationally recognized overnight courier or U.S. mail to the mailing address provided by you or by electronic mail to the email address provided by you. It is your responsibility to keep your contact information up to date. You must give notice to UI in writing by an internationally recognized overnight courier or U.S. mail to User Interviews, Inc., 228 Park Ave S, PMB 38712, New York, NY 10003 Attn: Legal Department. All notices shall be deemed delivered immediately upon receipt by electronic mail or, if otherwise delivered, upon the earlier of receipt or 2 business days after being deposited in the mail or with a courier.
9.6 Governing Law
For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and UI agree to submit to the personal and exclusive jurisdiction of any venue in the state and federal courts in New York, New York. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. The Terms and the relationship between you and UI shall be governed by the laws of the State of New York without regard to conflict of law provisions.
Notwithstanding the foregoing, you or we are permitted to: (i) bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (ii) bring claims for injunctive relief in any court having jurisdiction over the parties; or (iii) seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.
9.7 Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
All provisions which by their nature and intent are reasonably required to survive termination or expiration based on these Terms (including without limitation confidentiality obligations, feedback, warranty disclaimers, indemnification obligations, limitations of liability, arbitration and class waiver, Section 8 (Other Terms and Conditions) and Section 9 (Miscellaneous) shall survive any expiration or termination of these Terms.
- Contact Us
If you have any questions, comments or requests related to these Terms, please email us at firstname.lastname@example.org.