Effective Date: June 1, 2022
These Terms and Conditions, together with each applicable Order Form by and between you (“Customer” or “Researcher”) and User Interviews, Inc. (“UI”) and any other documents incorporated by reference herein or in any Order Form, are collectively referred to as the “Agreement.” Your use of the Services constitutes acceptance of the Agreement. If you are accepting this Agreement on behalf of a company or other legal entity, then you represent and warrant that you are authorized and lawfully able to bind that company or entity to this Agreement.
1. SERVICES AND SUPPORT
1.1 Right to Use the Services. Subject to the terms of the Agreement, UI grants to Customer and its Authorized Users (as defined below) a limited, non-exclusive, non-transferable right to access and use the Services solely for Customer’s internal business purposes and not for resale or further distribution. “Services” means the web-based platform and related offerings provided by UI and more fully set forth in an Order Form. An “Order Form” means (i) the selections made by Customer by means of the online purchasing process within the Services or (ii) an ordering document for the Services executed by both parties and incorporating this Agreement by reference.
1.2 Services Generally. Customer may use the Services 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 Customer outside of the Services. UI does not guarantee fulfillment of any Project posted to the Services. UI reserves the right to reject or remove any Project from the Services at any time if, in UI’s reasonable belief, such Project (i) violates the terms of the Agreement, (ii) risks harm or would be manifestly unfair to UI or Participants, or (iii) cannot be fulfilled based on its criteria; in all of the foregoing circumstances, UI will work in good faith with Customer to determine a resolution. Customer acknowledges and agrees that Customer will be required to provide certain Customer Data (as defined below) to the Services to enable their operation, that the Services are designed to act on direction given to it by Customer, and that Customer is solely responsible for such direction and the results thereof.
(a) Research Hub Service. Subject to the terms of the Agreement, Customer may use UI’s Research Hub Service to create and manage its own Participant audience to apply to Projects, either by uploading a dataset of individual records or by soliciting individuals to sign up as Customer-affiliated Participants (all of the foregoing, “Researcher-Affiliated Participants”; all data about any Researcher-Affiliated Participant that is provided by Customer or by the Researcher-Affiliated Participant is “Researcher-Affiliated Participant Information”).
(b) Recruit Service. Subject to the terms of the Agreement, Customer may use UI’s Recruit Service to source individuals from UI’s Participant audience to apply to Projects (“Recruit Participants”; all data about any Recruit Participant that is presented by or stored as part of the Services is “Recruit Participant Information”). Customer may not move any Recruit Participant to its Research Hub (to the extent applicable) without UI’s prior written consent.
(c) All references in the Agreement to “Participants” apply to both Recruit Participants and Researcher-Affiliated Participants, unless specifically noted otherwise.
1.3 Availability and Support. UI will provide and support the Services in accordance with the Service Level Agreement at www.userinterviews.com/legal/service-level-agreement. Customer’s sole remedy for any breach of the Service Level Agreement will be the Service Credit as specified therein.
1.4 Integration with Third-Party Platforms. Customer may elect to use optional features within the Services that involve integrations with a platform, add-on, service or product provided by a third party (each, a “Third-Party Platform”). These Third-Party Platforms are governed by their own terms and privacy policies and may enable data exchange between the Services and the applicable Third-Party Platform. Customer understands and agrees that UI does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, interoperability or how the Third-Party Platforms use data received from the Services.
1.5 Suspension. UI may, upon prior written notice to Customer, suspend Customer’s access to some or all of the Services or remove Customer Data if (i) Customer materially breaches this Agreement, including without limitation Section 2 (Customer Responsibilities and Restrictions), and does not cure such breach within 30 days following written notice from UI, or (ii) Customer’s account is 30 days or more overdue. UI may suspend Customer’s access to some or all of the Services or remove Customer Data if, in UI’s reasonable belief, Customer’s actions risk harm to Participants, UI, or the security, availability or integrity of the Services, and will use reasonable efforts to provide Customer with prior written notice of any such suspension. UI will promptly restore Customer’s access to the Services once the condition requiring suspension has been resolved.
2. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS
2.1 Access. The Services may be accessed only by employees or representatives of Customer who are authorized to use the Services by way of designated login credentials (“Authorized Users”). Customer is solely responsible for: (i) issuing and managing Authorized Users’ login credentials; (ii) verifying the identity of, and validating use of login credentials by, each Authorized User; (iii) ensuring that its access to the Services is limited to Authorized Users; and (iv) ensuring that its Authorized Users comply with this Agreement, including without limitation the restrictions set forth in this Section 2. Without prejudice to UI’s obligations under Section 4 (Confidentiality) or Section 5 (Data Security and Privacy), Customer assumes all responsibility and liability for the use of its account and for maintaining the confidentiality, privacy and security of its account and login credentials. Customer will promptly inform UI of any known or suspected unauthorized use of its account or any other breach of security.
2.2 Consent. Customer is responsible for obtaining and securing from each Participant (i) any non-disclosure or similar agreements that Customer may require for its Projects and Research Sessions and (ii) any informed consent that may be required for participating in or sharing information in connection with its Projects and Research Sessions. Without limiting the foregoing, Customer agrees to obtain any legally required consent from Participants to the extent Customer uses the Services to collect, or submits to the Services, any information defined as “sensitive” under applicable law or that otherwise requires enhanced consent under applicable law (e.g., information related to racial or ethnic origin, political opinions, religious or philosophical beliefs, health, sex life or sexual orientation, criminal background, trade union membership).
2.3 Use Restrictions.
(a) Customer agrees that it will use the Services only in compliance with the terms of this Agreement and UI’s Acceptable Use Policy at www.userinterviews.com/legal/acceptable-use-policy. Customer acknowledges and agrees that, as between Customer and UI, Customer is solely responsible for ensuring that it and its Authorized Users utilize the Services in compliance with applicable laws and regulations.
(b) Customer agrees that it will not, nor will it permit or authorize any third party to, (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 (v) remove any proprietary notices or labels.
(c) Customer agrees that it will not use the Services to collect, and will not submit to the Services, any of the following categories of information about Participants: 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 information subject to enhanced protection under applicable law (e.g., Protected Health Information as defined in the Health Insurance Portability and Accountability Act (HIPAA)).
(d) Without prejudice to the restrictions set forth in Section 2.3(c), to the extent Customer uses the Services to source Participants for clinical trials, Customer acknowledges and agrees that it is solely responsible for compliance with all applicable legal and regulatory requirements related to clinical trials, including without limitation obtaining the informed consent of such Participants and any necessary approvals by an Institutional Review Board or equivalent body.
(e) Customer agrees that it will not use the Services if Customer is offering a product or service in competition with the Services or for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.
(f) Customer agrees that it will not use the Services for purposes of attempting to sell Customer’s products or services to Participants.
2.4 Disintermediation. Customer agrees that it will not (i) re-contact any Recruit Participant who previously applied to a Project unless all communication is handled through the Services, or (ii) take any action that encourages or solicits any Recruit Participant to participate in Research Sessions without use of the Services.
3. PROPRIETARY RIGHTS
3.1 Services. 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 Customer any rights in or to the Services, other than the right to use the Services as expressly stated in this Agreement.
3.2 Customer Data. Customer owns and retains all right, title and interest in and to the data, documents, content, and other materials input by Customer into the Services, other than Screener Information (“Customer Data”). Customer hereby grants to UI a limited, royalty-free, non-exclusive right and license to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data as necessary for performance of UI’s obligations and exercise of UI’s rights under this Agreement or as may be required by applicable law. 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 represents and warrants that it has obtained all rights, permissions, and authorizations to provide the Customer Data to UI for use as contemplated under this Agreement.
3.3 Researcher-Affiliated Participant Information. Researcher-Affiliated Participant Information is Customer Data. UI will not use Researcher-Affiliated Participant Information for any purpose other than to provide the Services to Customer (unless, and only to the extent that, the Researcher-Affiliated Participant has independently created a separate Recruit Participant account in the Services). Customer represents and warrants that it has secured all necessary and required consent from each individual whose information is included in a Researcher-Affiliated Participant record and that UI may use Researcher-Affiliated Participant Information in accordance with this Agreement.
3.4 Recruit Participant Information. As between UI and Customer, UI owns and retains all right, title and interest in and to Recruit Participant Information. UI hereby grants to Customer the right to use Recruit Participant Information, on a Project-by-Project basis, solely as enabled by the Services. Without limiting the foregoing, Customer shall not (i) add any Recruit Participant Information to any Customer contact list or contact database, (ii) sell or provide any Recruit Participant Information to any third party, or (iii) publicly disseminate or otherwise put into the public domain any Recruit Participant Information.
3.5 Screener Information. UI owns and retains all right, title and interest in and to (i) all screener questions directed to Recruit Participants and (ii) all responses from Recruit Participants to screener questions (collectively, “Screener Information”). UI hereby grants to Customer a worldwide, royalty-free, non-exclusive, perpetual license to use, copy and distribute Screener Information generated through Customer’s use of the Services for legitimate purposes, subject to applicable law.
3.6 Aggregated Data. UI may aggregate and use data derived from Customer’s use of the Services to operate, improve, analyze and support the Services, for distribution in general benchmarking data and industry reports, and for other lawful business purposes, provided that the data (i) is combined with similar data from UI’s other customers, (ii) does not directly or indirectly identify Customer, its Authorized Users, or any identifiable individual, and (iii) does not include any Customer Confidential Information (“Aggregated Data”). UI will implement technical safeguards and business processes that prohibit reidentification of the Aggregated Data and prevent inadvertent release of the Aggregated Data.
3.7 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 (excluding any Customer Confidential Information contained therein, “Feedback”). Nothing in this Agreement shall restrict UI’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without compensating or crediting Customer or the individual providing such Feedback. Notwithstanding the provisions of Section 4 (Confidentiality), Customer may not designate Feedback as its Confidential Information to the extent that such Feedback relates to the Services.
4. CONFIDENTIALITY
4.1 Confidential Information. Each party (the “Receiving Party”) acknowledges that it may receive business, technical or financial information from the other party (the “Disclosing Party”) related to the operations of the Disclosing Party or a third party that has been designated as confidential at or before the time of disclosure or should reasonably be understood to be confidential given its nature or the circumstances of its disclosure (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) is already in the Receiving Party’s possession prior to the time of disclosure; (iii) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. For purposes of this Agreement, and without limitation, UI’s Confidential Information includes non-public information regarding the Services and Customer’s Confidential Information includes Customer Data.
4.2 Treatment of Confidential Information. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own Confidential Information, and in any event, with no less than reasonable care. The Receiving Party may use the Disclosing Party’s Confidential Information solely to exercise its rights and carry out its obligations under this Agreement and will disclose such Confidential Information solely to its personnel, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The Receiving Party will notify the Disclosing Party promptly and in writing of the circumstances surrounding any unauthorized possession, use or knowledge of any such Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent compelled by law or the order of a court or other governmental body, provided that the Receiving Party notifies the Disclosing Party of such compelled disclosure promptly and in writing (to the extent legally permitted) and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information of the Disclosing Party or certify in writing that it has destroyed all such materials.
4.3 Injunctive Relief. The Receiving Party acknowledges that any actual or threatened violation of this Section 4 may cause irreparable harm to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Receiving Party agrees that, in addition to all other remedies available at law or in equity, the Disclosing Party will be entitled to seek an immediate injunction against any breach or threatened breach of this Section 4 without the posting of any bond and without proof of actual damages.
5. DATA SECURITY AND PRIVACY
5.1 Data Security. UI will maintain appropriate administrative, technical and organizational security measures designed to safeguard the Services and Customer Data, in accordance with industry standards and as further described at https://www.userinterviews.com/legal/security-measures. UI may update its security measures from time to time to reflect process improvements or changing practices, provided that such modifications do not materially decrease the overall security of the Services or Customer Data. UI will promptly notify Customer of any compromise of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data. The parties will reasonably assist each other in investigating any such compromise of security and will take such actions as the parties reasonably deem necessary to prevent the continuation or recurrence thereof.
5.2 Data Processing Agreement. Each party will process Personal Data in accordance with their respective obligations under applicable privacy and data protection laws and with the terms of the Data Processing Agreement located at www.userinterviews.com/legal/data-processing-agreement, which is hereby incorporated by reference. “Personal Data” means any information relating to an identified or identifiable natural person.
5.3 Privacy Policy. UI’s Privacy Policy at www.userinterviews.com/privacy describes UI’s collection, use and disclosure of Personal Data in connection with the Services. Authorized Users and Recruit Participants are required to agree to UI’s Privacy Policy when creating an account within the Services.
6. TERM AND TERMINATION
6.1 Term and Renewal. This Agreement will remain in effect through the initial Subscription Period specified in the Order Form and will renew or terminate as specified in the Order Form, unless otherwise terminated in accordance with this Agreement. If the Order Form does not specify, the initial Subscription Period will be one year and will automatically renew for successive one-year periods under the terms of the then-current Order Form unless either party provides written notice of non-renewal at least 14 days prior to the end of the then-current term.
6.2 Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement if the other party: (i) materially breaches any provision of this Agreement and fails to remedy the breach within 30 days after receipt of a written notice specifying the breach; (ii) repeatedly materially breaches any provision of this Agreement, regardless of whether such breaches are cured; or (iii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates this Agreement due to UI’s material breach of the Agreement, UI shall refund to Customer any prepaid, unused Fees for the terminated portion of the applicable Subscription Period.
6.3 Data Export. Following termination of this Agreement, UI will retain Customer Data for 30 days from such date of termination (“Data Retention Period”), beyond which UI will have no obligation to retain Customer Data. Thereafter, unless prohibited by law or this Agreement, UI reserves the right to destroy all Customer Data (including, without limitation and to the extent applicable, Researcher-Affiliated Participant Information) in UI’s possession. Customer agrees that Customer is solely responsible for exporting Customer Data prior to the end of the Data Retention Period and, if requested, UI will provide reasonable assistance with exporting Customer Data during the Data Retention Period.
6.4 Effect of Termination and Survival. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement. Without limiting the foregoing, Customer will pay in full for the Services up to and including the last day on which the Services are provided. All provisions which by their nature and intent are reasonably required to survive termination or expiration based on the terms of this Agreement (including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations, and limitations of liability) shall survive expiration or termination of this Agreement.
7. FEES AND PAYMENT
7.1 Fees. Customer will pay UI the applicable fees for the Services in accordance with the Order Form (“Fees”). If Customer’s use of the Services exceeds the limitations specified in the Order Form or otherwise requires the payment of additional fees, UI will bill Customer for such usage and Customer will 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 Subscription Period or then-current renewal period, upon thirty (30) days’ prior notice to Customer (which may be sent by email).
7.2 Participant Incentive Payments. Customer must provide an incentive payment to Recruit Participants for participating in a Research Session. Customer may (but is not required to) provide an incentive payment to Researcher-Affiliated Participants for participating in a Research Session. Customer is solely liable for incentive payments offered to Participants, including for Customer mistakes arising for any reason, excluding negligence or willful misconduct by UI.
(a) Distribution by UI. If Customer elects to use UI to distribute incentive payments to Participants on Customer’s behalf (to the extent Participants reside in a country in which UI supports such incentive payments), Customer agrees that: (i) upon the Participant’s completion of their part in a Research Session, Customer will promptly (and in any event within 10 business days) confirm such Participant’s completion within the Services; (ii) UI will compensate the Participant in the amount of the incentive payment in the form enabled by the Services (e.g., digital gift cards); and (iii) Customer will pay to UI, in accordance with Section 7.4, the amount of the incentive payment plus the applicable processing fees as set forth in the Order Form. If Customer has not confirmed a Participant’s completion within 10 business days, the incentive payment may, in UI’s sole discretion, be distributed to such Participant by UI and billed to Customer.
(b) Distribution by Customer. If Customer elects to distribute incentive payments to Participants directly, Customer agrees that it will issue such payments within 10 business days of the Participant’s completion of their part in a Research Session. Incentive payments that have not been issued within 10 business days may, in UI’s sole discretion, be distributed by UI and billed to Customer.
7.3 Cancellation Fee. If Customer cancels a Recruit Participant after that Recruit Participant has been scheduled and does not reschedule such Participant within a reasonable period, UI reserves the right to charge Customer a cancellation fee (not to exceed 25% of the incentive payment amount offered for the relevant Research Session), which UI will distribute to such Participant.
7.4 Payment. UI may use a third-party payment service provider to bill Customer through an online account, in which case the processing of payments will be subject to the terms and privacy policies of such third-party payment service provider in addition to this Agreement. By submitting payment account information, Customer acknowledges and agrees that UI does not control and has no liability for the security, functionality, operation or availability of such third-party payment service provider. If the parties agree that UI will bill Customer through an invoice, Customer will pay all invoices within 30 days of the invoice date. If any undisputed Fees remain unpaid more than 30 days after the due date, in addition to UI’s right to other remedies available under law, UI may (i) charge an interest for late payment equal to the lesser of 1.5% per month on any outstanding balance or the maximum amount permitted by law, and/or (ii) suspend Customer’s access to the Services in accordance with Section 1.5 (Suspension), and/or (iii) terminate this Agreement in accordance with Section 6.2 (Termination for Cause). If Customer believes that UI has billed Customer incorrectly, Customer must provide written notice to UI specifying the alleged issue no later than 60 days after the issue date of the invoice in which the error appeared in order to receive an adjustment or credit.
7.5 Refunds. Prepaid Fees are not refundable except as expressly set forth in this Agreement.
7.6 Taxes. Except for taxes imposed on UI’s net income, Customer is responsible for paying any taxes, levies, duties, fees or other amounts assessed or imposed by any government authority, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively, “Taxes”), and UI will invoice Customer for such Taxes if UI believes UI has a legal obligation to do so. Customer agrees to pay such Taxes if so invoiced, except to the extent Customer provides evidence of exemption from any such Taxes. Customer is solely responsible for evaluating, reporting, and remitting any taxes that may be due to any taxing authority in connection with incentive payments it distributes to Participants directly.
8. WARRANTIES AND DISCLAIMERS
8.1 Warranties. Each party represents and warrants that: (i) it has the full power and authority to execute and fully perform this Agreement in accordance with its terms; and (ii) its execution and performance of its obligations under this Agreement will not violate any agreement to which it is a party. UI further represents and warrants that, during the term of this Agreement: (a) the Services will be provided in a professional manner and in material compliance with applicable laws; (b) UI will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services; (c) UI will use reasonable measures consistent with prevailing industry standards to ensure that the Services do not contain any viruses, worms, time bombs, Trojan horses, malicious code, or other malware (“Viruses”); and (d) UI will not materially reduce the features or functionality of the Services during the term of this Agreement.
8.2 Platform Only. Although UI reserves the right to review or remove any Customer Data or other information that appears in the Services, UI does not assume any responsibility for the accuracy or reliability of Customer Data, Recruit Participant 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 Research Session, or any communication between Customer and any Participant. Participants are independent third parties over whom UI has no control and for whom UI takes no responsibility.
8.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 8, 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 AND 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, 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. NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM UI OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. INDEMNIFICATION
9.1 By UI. UI will defend Customer and its directors, officers, employees, and agents against any third-party claim to the extent arising out of or related to (i) any breach by UI of Section 5 (Data Security and Privacy) and/or (ii) an allegation that the Services, when used by Customer as authorized in this Agreement, infringe or misappropriate a third party’s valid patent, copyright, trademark or trade secret (an “Infringement Claim”), and UI will pay any damages and costs (including reasonable attorneys’ fees) finally awarded against Customer and its directors, officers, employees, and agents or agreed in settlement by UI resulting from such claim. If an Infringement Claim occurs or if UI determines an Infringement Claim is likely to occur, UI will have the right, in its sole discretion, to: (a) procure for Customer the right to continue using the Services; (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services’ overall functionality; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined in UI’s sole discretion, terminate the affected Order Form(s) and refund to Customer any prepaid, unused Fees for the terminated portion of the applicable Subscription Period. UI will have no liability or obligation under this Section 9.1 to the extent an Infringement Claim arises out of or results from: modification or alteration of the Services by or at the direction of Customer or any of its Authorized Users; Customer’s or its Authorized User’s combination, operation or use of the Services with hardware, software, products, data or other materials not provided by UI; or any content or data provided or made available by Customer or any of its Authorized Users. The provisions of this Section 9.1 state the sole, exclusive and entire liability of UI and constitute Customer’s sole remedy with respect to an Infringement Claim, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
9.2 By Customer. Customer will defend UI and its directors, officers, employees, and agents against any third-party claim to the extent arising out of or related to (i) any breach by Customer of Section 2 (Customer Responsibilities and Restrictions) or Section 3.2 (Customer Data) and/or (ii) any Customer Research Session (including without limitation any disputes between Customer and any Participant), and Customer will pay any damages and costs (including reasonable attorneys’ fees) finally awarded against UI and its directors, officers, employees, and agents or agreed in settlement by Customer resulting from such claim.
9.3 Requirements. The indemnifying party’s obligations in this Section 9 are contingent upon receiving: (i) prompt written notice of the claim, except to the extent a failure to receive prompt notice does not materially prejudice the defense of the claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim, provided that the indemnified party may participate in the defense of a claim with its own counsel at its own expense; and (iii) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense. The indemnifying party will not settle any claim without the indemnified party’s prior written consent unless the settlement fully and unconditionally releases the indemnified party and does not require the indemnified party to pay any amount, take or refrain from taking any action, or admit any liability.
10. LIMITATION OF LIABILITY
10.1 Consequential and Indirect Damages Waiver. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF UI), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
10.2 Acts by Participants. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL UI BE LIABLE TO CUSTOMER FOR ANY ACTS OR OMISSIONS BY ANY PARTICIPANT OR ANY LOSSES WHATSOEVER WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY PARTICIPANT.
10.3 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO UI (EXCLUDING PARTICIPANT INCENTIVE PAYMENTS) DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
10.4 Excluded Claims. “Excluded Claims” means (i) either party’s breach of Section 4 (Confidentiality) or (ii) either party’s obligations under Section 9 (Indemnification).
11. MISCELLANEOUS
11.1 Publicity. UI may use Customer’s name and logo to identify Customer as a client of UI on UI’s website and other marketing materials, provided that UI will comply with any brand guidelines provided by Customer and will cease such use promptly upon Customer’s request.
11.2 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 this Agreement.
11.3 Assignment. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent. Either party may assign this Agreement without the consent of the other party in connection with the sale, merger or other corporate combination involving all or substantially all of the assigning party’s assets to a third party. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
11.4 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all prior written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
11.5 Order of Precedence. If there is an express conflict between the provisions of these Terms and Conditions and another agreement between the parties, the conflict will be resolved according to the following order of precedence: (i) any agreement between the parties concerning privacy, security or confidentiality matters (so long as that agreement references that it is not to be superseded by these Terms and Conditions); (ii) an Order Form; and (iii) these Terms and Conditions.
11.6 Severability. If any provision of this Agreement 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 this Agreement will remain in effect.
11.7 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, provided that such modifications will not materially decrease UI’s obligations under this Agreement. 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.
11.8 Waiver. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. The waiver by either party of a breach or a default of any provision of this Agreement by the other party will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission on the part of either party to exercise any right herein operate as a waiver of that right by such party.
11.9 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, franchise, fiduciary or employment relationship between the parties, nor constitute any 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.
11.10 Subcontractors. UI may use subcontractors and permit them to exercise UI’s rights, provided that UI will at all times remain responsible for the performance of such subcontractors.
11.11 Notices. All notices provided by UI to Customer under this Agreement may be delivered in writing by an internationally recognized overnight courier or U.S. mail to the mailing address provided by Customer or by electronic mail to the email address provided by Customer. It is Customer’s responsibility to keep its contact information up to date. Customer 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, with a CC by electronic mail to legal@userinterviews.com. 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.
11.12 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement 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 (each a “Force Majeure Event”). Upon prompt written notice to the other party of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.13 Governing Law. This Agreement shall be governed by the laws of the State of New York and the United States of America without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in New York, NY for resolution of any disputes arising out of this Agreement.
11.14 Electronic Acceptance. This Agreement may be accepted in electronic form and Customer’s acceptance will be deemed binding between the parties. Neither party may contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form.
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