Last updated: August 12, 2021
These Terms and Conditions incorporate any applicable Order Forms by and between the Customer named therein (“Customer”) and User Interviews, Inc. (“UI”) (collectively, the “Agreement”). To the extent Customer has ordered Services through UI’s self-service functionality within the Services, the “Order Form”shall be deemed to be comprised of the selections made by Customer within the Services, and the corresponding information and terms provided by UI, in each case with respect to the specific Services offerings for which Customer has subscribed.
1. SERVICES AND SUPPORT
1.1 Services Generally. Subject to the terms of this Agreement, UI will use commercially reasonable efforts to provide Customer the Services set forth on the Order Form (“Services”) in accordance with the Service Level Agreement at www.userinterviews.com/legal/service-level-agreement; UI will provide Customer with reasonable technical support services in accordance with the Service Level Terms. Customer may post testing or interview opportunities (each, a “Project”) to the Services, and may use the Services to source individuals to participate in Projects (“Participants”). Participants are independent third parties over which UI has no control and for which UI takes no responsibility. UI reserves the right to reject or remove any Project at any time for any or no reason. UI does not guarantee fulfillment of any Project.
1.2 Recruit Services. Subject to the limitations set forth in the Order Form and to the terms and conditions of this Agreement, Customer may use the Services to source individuals from UI’s panel of potential research participants to serve as Participants in Projects.
1.3 Research Hub Services. Subject to the limitations set forth in the Order Form and to the terms and conditions of this Agreement, the following terms apply:
(b) Non-Use. UI will not contact any Researcher-Affiliated Participant about opportunities with non-Customer Projects, or use their information in any way other than to provide the Services to the applicable Researcher (unless those Researcher-Affiliated Participants have created a separate, independent Participant account in the Services).
1.4 Use of UI as Payment Intermediary. If Customer does not use UI as a payment intermediary for a Project, Customer agrees that UI has no responsibilities related to payment for services provided to Customer by any applicable Participants; if Customer chooses to use UI as a payment intermediary for a Project, as such functionality may be made available through the Services from time to time, then the following clauses ((a) through (c)) shall apply to such Project: (a) to the extent Customer promises a completion fee to a Participant in association with such Project, Customer shall pay to UI the full amount of such completion fee, plus the applicable recruiting and processing fees established by UI from time to time, promptly upon such Participant's completion of his or her part in such Project. Customer is solely liable for completion fees promised to Participants, including for Customer mistakes arising for any reason. Customer agrees that the maximum completion fee that Customer may promise to any Participant for any such Project is $750 unless otherwise agreed in writing by Customer and UI; (b) UI shall compensate each Participant that completes his or her part in such Project in the form of Participant’s choosing through UI’s platform (including in the form of gift cards to widely-used online shopping platforms) in the amount of the completion fee promised for such Project; (c) If Customer cancels a Participant after that Participant has been scheduled, UI may, in its sole discretion, charge Customer a cancellation fee plus the applicable recruiting and processing fees established by UI from time to time.
1.5 Integration of Third Party Platforms. Customer may choose to use features within the Services that involve integrations with Third-Party Platforms. Use of Third-Party Platforms may be subject to Customer’s agreement with the relevant provider and/or additional terms as described in the Services, and may enable data exchange between the Services and the applicable Third-Party Platform. UI does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms use data received from the Services. “Third-Party Platform” means any platform, add-on, service or product provided by any third party that Customer elects to integrate or enable for use with the Services.
1.6 Suspension. UI may suspend Customer’s access to the Service or remove RAP Information, in each case in whole or in part, if Customer breaches this Agreement, if Customer’s account is 30 days or more overdue or if Customer’s actions risk harm to UI or other customers or the security, availability or integrity of the Services. Where practicable, UI will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, UI will promptly restore Customer’s access to the Services in accordance with this Agreement.
2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
2.1 Access. The Services may only be accessed by employees or representatives of Customer authorized by Customer (“Authorized Users”) who (i) have been properly issued a valid password and username (“Credentials”),and (ii) have agreed to abide by the terms and conditions of this Agreement. Customer shall be solely responsible for: (a) issuing, managing, and deleting Credentials, (b) verifying the identity of each Authorized User and validating use of Credentials by each Authorized User, and (c) monitoring Authorized User access to the Service to ensure that only Authorized Users that are permitted to access and use the Service do so. Customer shall assume all responsibility and liability with respect to access and use of the Services by Authorized Users, including ensuring that Authorized Users comply with all of the obligations and restrictions set forth in this Agreement. Customer shall promptly inform UI of any unauthorized use of the Services or breach of this Agreement by any of its Authorized Users and inform UI of the steps being taken to terminate such unauthorized use or breach.
2.2 Use Restrictions. Customer will not, directly or indirectly:(i) reverse engineer, decode, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (ii) copy, in whole or in part, the Services or any component thereof; (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Services (except to the extent expressly permitted by UI or authorized within the Services); (iv) sublicense, sell, rent, lease, transfer, distribute, or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (v) remove any proprietary notices or labels. Customer shall not use the Services to the extent Customer is legally prohibited under the laws of the country in which Customer is a resident or from which Customer accesses or uses the Services. The Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA); Customer shall not use the Services where Customer’s communications or any Customer-provided information would be subject to such laws. Customer shall not use the Services if Customer is a competitor or for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes. Customer shall not use the Services for clinical trial recruitment, high risk activities or sourcing Participants for high risk activities, or attempting to sell Customer’s products or services to Participants.
2.3 Compliance. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, UI’s standard published policies then in effect (including the Acceptable Use Policy at www.userinterviews.com/legal/acceptable-use-policy) and all applicable laws and regulations. Customer shall not submit or solicit any information that is personal financial information, sensitive information, personal health information or protected health information (in each case as defined under applicable law,with “sensitive information” including information related to race or ethnic origin, political opinions, religion or other beliefs, health or sex life,criminal background, trade union membership or any other similar information)(collectively, “Sensitive Information”). Customer represents and warrants that it is not a “covered entity” for purposes of the Health Insurance Portability and Accountability Act or any state equivalent. If Customer uses the Services to collect, manage, or process Sensitive Information, it shall be considered unauthorized use of the Services,and UI will not have any liability that may result from such use.
2.4 Disintermediation. With the exception of Researcher-Affiliated Participants (if applicable), Customer may not re-contact any Participants who were previously recruited for a Project unless all communication is handled through the Services.
2.5 Equipment. Customer shall be 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, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. INFORMATION AND DATA
3.1 Participant Information. As between UI and Customer, all information regarding Participants (other than RAP Information) that is presented by or stored as part of the Services (“Participant Information”) belongs to UI. UI hereby grants to Customer the right to use Participant Information, on a Project-by-Project basis, solely as enabled by the Services. Without limiting the foregoing, Customer shall not copy any Participant Information, add any Participant Information to any Customer contact list or database, or sell or provide any Participant Information to any third party.
3.2 Customer Data. Customer is solely responsible for the accuracy, completeness, validity, authorization for use (including transmission) and integrity of all Customer Data, regardless of form or format. “Customer Data” is the non-public information provided by Customer to UI to enable the provision of the Services (such as Project name and description, Customer user account information, etc.), other than Screener Information. Customer acknowledges and agrees that (i) Customer will be required to provide certain Customer Data to the Services to enable their operation, and (ii) the Services are designed to act on direction given to it by the Customer, and that Customer is solely responsible for such direction and the results thereof. Customer represents and warrants that Customer has the right to provide all Customer Data that Customer provides to UI,and has obtained all necessary consent where applicable. Customer shall own all right, title and interest in and to the Customer Data. The terms of the UI Data Processing Agreement located at www.userinterviews.com/legal/data-processing-agreement are hereby incorporated by reference and will apply to the extent any Customer Data includes personal information. The DPA sets out how UI will process certain personal information on Customer’s behalf in connection with the Services.
3.3 License to Customer Data. Customer hereby grants to UI and its relevant service providers a limited, nonexclusive, royalty-free, right and license, to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data (i) as necessary for performance of UI’s obligations and exercise of UI’s rights under this Agreement; (ii) as required by applicable law; and (iii) to create derivatives of such data, solely in de-identified and aggregated form (“Aggregated Data”). Customer hereby grants to UI a limited,nonexclusive, perpetual, irrevocable royalty-free, irrevocable right and license to access, store, reproduce, display, handle, perform, transmit, test,modify, process, combine with other data, disclose, and otherwise use Aggregated Data to improve UI’s products and services. Customer agrees that UI shall own all right,title, and interest in all Aggregated Data and in such improvements and derivative works.
3.4 Screener Information. Notwithstanding anything to the contrary in Section 3.2, all responses from Participants or possible Participants to screener questions, and screener questions themselves, other than RAP Information, (collectively, “Screener Information”) are owned by UI and are UI Confidential Information; Screener Information is not Customer Data. UI hereby grants to Customer a worldwide,royalty-free, non-exclusive, transferable, irrevocable, and perpetual license to use, copy and distribute Screener Information generated through Customer’s use of the Services.
3.5 Usage Data. UI may generate and use Usage Data to operate, improve, analyze and support the Services and for other lawful business purposes. “Usage Data” means technical, log, usage and other data related to Customer’s general use of the Services.
4. INTELLECTUAL PROPERTY IN THE SERVICES
4.1 Services. UI shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. Nothing contained herein shall be construed as granting Customer any rights in or to the Services, other than the right to use the Services as expressly stated herein.
4.2 Feedback. The parties acknowledge and agree that UI may solicit and Customer may provide to UI suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the “Feedback”). Customer hereby grants to UI a nonexclusive, perpetual, irrevocable, royalty-free, right and license to disclose, use and incorporate the Feedback in connection with the development and distribution of the Services and related products and services.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”)has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of UI includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information and (iii) to notify the Disclosing Party promptly and in writing of the circumstances surrounding any suspected possession, use or knowledge of any such Proprietary Information or any part thereof at any location or by any person or entity other than those authorized by this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
6. PAYMENT OF FEES
6.1 Fees Generally. Customer will pay UI the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the limitations set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement or as otherwise set forth within the Services), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. UI reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that UI has billed Customer incorrectly, Customer must provide written notice to UI specifying the alleged issue no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Prepaid Fees are not refundable except in the event of a termination of this Agreement by Customer due to UI’s material breach pursuant to Section 7.2, in which case UI shall refund to Customer prepaid Fees in respect of then-unused Services. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on UI’s net income.
6.2 Method of Payment. UI may use a third party payment service to bill Customer through an online account. By submitting payment account information, Customer grants UI the right to store and process such information with the third party payment service and agrees that UI will not be responsible for any failures of the third party to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement. UI may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by UI thirty (30) days after the mailing date of the invoice.
7. TERM AND TERMINATION
7.1 Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party provides written notice of non-renewal at least fourteen (14) days prior to the end of the then-current term.
7.2 Effect of Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment,confidentiality obligations, warranty disclaimers, and limitations of liability.
8. WARRANTY AND DISCLAIMER
8.1 Security. UI uses reasonable security precautions designed to prevent unauthorized access to the Services as described in the Information Security Addendum at www.userinterviews.com/legal/information-security-addendum (or any successor website), and shall at all times maintain security precautions consistent with industry-standard practices. UI shall promptly notify Customer of any material unauthorized use of the Services by an unauthorized person or entity that affects the security of the Customer’s Proprietary Information and that is known to UI. The parties shall reasonably assist each other in investigating such unauthorized act and take such action as is reasonably necessary to prevent the continuation or recurrence thereof.
8.2 Availability. UI shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by UI or by third-party providers, or because of other causes beyond UI’s reasonable control, but UI shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However,UI does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND UI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.3 Platform Only. Although UI reserves the right to review or remove any Customer Data or other information that appears in the Services, UI cannot—and does not—take responsibility for any Customer Data or Participant Information, and UI does not assume any responsibility for the accuracy or reliability of this information or any information exchanged between Customer and any Participant. UI does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any Project, or any communication between Customer and any Participant. UI is not responsible for the conduct of any Participant in any way.
8.4 No Tax Advice. Customer is solely responsible for understanding and evaluating any potential tax liability related to payments made in connection with Projects. UI cannot and does not offer tax advice and is not responsible in any way for any failure of UI to report or remit any taxes that may be due to any taxing authority.
9. LIMITATION OF LIABILITY
9.1 Consequential and Indirect Damages Waiver. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance. Without limiting the foregoing, UI is not liable for any damages or other amounts in connection with any disputes between Customer and any Participant.
9.2 Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to UI during the prior 12 months under this Agreement.
9.3 Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 1.3(a), 2.2, 2.3, 2.4, 3.1, or 3.2 or (b) amounts payable under Section 10.
9.4 Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract,tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
10.1 By UI. UI will defend Customer from and against any third-party claim to the extent alleging that the Services, when used by Customer as authorized in this Agreement, infringes the claimant third party’s registered U.S. patent,copyright or trademark, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’fees) or agreed in settlement by UI resulting from the claim. In response to an actual or potential infringement claim, if required by settlement or injunction or as UI determines necessary to avoid material liability, UI may at its option: (a) procure rights for Customer’s continued use of the Services, (b)replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services’ overall functionality or (c)terminate the affected order and refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term. UI’s obligations in this Section 10.1 do not apply (1) to infringement resulting from Customer’s modification of the Services or use of the Services in combination with items not provided by UI, (2) to unauthorized use of the Services, (3) breach by Customer of any provision of this Agreement, (4) if Customer settles or makes any admissions about a claim without UI’s prior consent or (5) claims indemnifiable under Section 10.2. This Section 10.1 sets out Customer’s exclusive remedy and UI’s entire liability regarding infringement of third-party intellectual property rights.
10.2 By Customer. Customer will defend UI from and against any third-party claim to the extent arising in connection with (i) Customer’s submission or solicitation of any Customer Data or Participant Information, (ii) Customer’s use of the Services, (iii) any breach by Customer of any provision in this Agreement, and (iv) any Project and will indemnify and hold harmless UI against any damages or costs awarded against UI (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.
10.3 Requirements. The indemnifying party’s obligations in this Section 10 are subject to receiving: (a) prompt notice of the claim (except to the extent a failure to receive notice does not materially prejudice the defense of the claim), (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs.The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services). The indemnified party may participate in a claim with its own counsel at its own expense.
11.1 Publicity. Neither party may publicly announce this Agreement except with the other party's prior consent or as required by applicable law. However, UI may include Customer and its trademarks in UI’s customer lists and promotional materials but will cease this use at Customer's written request.
11.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.3 Assignment. This Agreement is not assignable,transferable or sublicensable by Customer except with UI’s prior written consent. UI may transfer and assign any of its rights and obligations under this Agreement without consent.
11.4 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
11.5 Amendments. Any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by UI. Nonetheless, with notice to Customer, UI may modify any policies referenced herein to reflect new features or changing practices, but the modifications will not materially decrease UI’s overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by UI; any of these Customer documents are for administrative purposes only and have no legal effect.
11.6 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
11.7 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind UI in any respect whatsoever.
11.8 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
11.9 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
11.10 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
11.11 Subcontractors. UI may use subcontractors and permit them to exercise UI’s rights, but UI remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
Governing Law. This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York, NY and both parties submit to the personal jurisdiction of those courts.