UserZoom Terms & Conditions 2.0
Last Updated: 02/07/2017
These Terms & Conditions (“Terms & Conditions”) are entered into by and between User Zoom, Inc. (“UserZoom”) and the “Customer” identified in a mutually-executed Service Agreement or Order Form (“Service Agreement”) that references these Terms & Conditions. Together, the Service Agreement and these Terms & Conditions are referred to as the “Agreement.”
Capitalized terms used but not defined in these Terms & Conditions have the meanings given to them in the Service Agreement.
Subject to the terms and conditions of this Agreement, UserZoom will provide the services (the “Services”) described in the Service Agreement throughout the period that begins on the Activation Date and ends on the Expiration Date specified in the Service Agreement (the “Subscription Period”). UserZoom will provide the Services in accordance with the specifications set forth in the Service Agreement. The Services include access during the Subscription Period to UserZoom’s web-based, self-service digital user testing & customer experience measurement solution (the “Self-Service Solution”). This Agreement governs all use of the Self-Service Solution, whether from UserZoom’s web site, mobile applications, mobile site, or any other access points made available by UserZoom.
2. Fees; Payment.
2.1 Fees. Customer will pay the fees for the Services specified in the Service Agreement (“Fees”).
2.2 Payment; Taxes. Except as otherwise provided in the Service Agreement, all Fees are invoiced annually in advance at the beginning of each year of the Subscription Period. Invoices are payable net 30 days from invoice date. UserZoom may charge a late fee of one and one half percent (1.5%) per month on past due amounts. The Fees payable under this Agreement do not include local, state or federal taxes or duties of any kind, all of which are the responsibility of Customer (except for taxes based on UserZoom’s income). Customer will send payments to the payment address specified on each invoice. Unless otherwise provided in the Service Agreement, all amounts under this Agreement are payable in U.S. dollars and, except as otherwise expressly provided herein or in the Service Agreement, all Fees are nonrefundable once paid.
3. Self-Service Solution.
3.1 Customer Users. UserZoom will provision user accounts (i.e., username/password pairs) for the Self-Service Solution for each user designated by Customer’s “Administrator” identified in the Service Agreement (each a “Customer User”), up to the number of Customer User accounts allowed under the Service Agreement. Each account may be used only by the individual Customer User to whom it is assigned. Customer may re-assign Customer User accounts by written notice to UserZoom, which may be given via email from the Administrator identified in the Service Agreement (or a successor Administrator designated by Customer via written notice) (the “Administrator”); provided, that Customer may not re-assign Customer User accounts for the purpose of defeating the limit on Customer Users set forth in the Service Agreement. Customer may designate its (and its corporate affiliates’) employees or independent contractors as its Customer Users; provided, that (a) Customer remains responsible for all use and misuse of the Self-Service Solution that occurs under Customer Users’ login credentials and for any breach of this Agreement by any of its Customer Users (including third parties), (b) Customer agrees to notify UserZoom of any unauthorized access or use of which Customer becomes aware, and (c) all usage of the Self-Service Solution by Customer Users (including third parties) is subject to the aggregate usage limitations set forth in the Service Agreement (for example, limits on the number of Customer Users, concurrent Studies, Participants and/or Customer brands/domains). Customer acknowledges that, in order for UserZoom to provide support to Customer, UserZoom support personnel will need access to Customer User accounts in order to resolve issues and provide assistance. If Customer requests support, UserZoom will access applicable Customer Users’ accounts only to provide support and for no other purpose.
3.2 Permitted Use of Self-Service Solution. Among other features, the Self-Service Solution enables Customer Users to (a) create, design and manage studies that involve the testing and evaluation of web sites, mobile sites, mobile applications and web applications (“Studies”) and (b) invite individuals (“Participants”) to participate in those Studies by taking online surveys, completing task-based studies, and providing other feedback. Subject to the terms of the Service Agreement, UserZoom hereby grants Customer a non-exclusive, non-transferable right to access and use the Self-Service Solution during the Term to (i) create, design, submit content to, manage and access the results of Studies, (ii) invite Participants to view, submit content to, and otherwise participate in Studies, and (iii) otherwise use the features and functionality of the Self-Service Solution for Customer’s internal business purposes, all subject to the usage limitations set forth in the Service Agreement and the other terms and conditions of this Agreement. If the Service Agreement limits usage to specified domains or brands, the license granted in this Section 3.2 does not include the right to use the Self-Service Solution to conduct Studies on any other domains or branded web properties.
3.3 Prohibited Uses of Self-Service Solution. Customer will not (and will ensure that Customer Users do not): (a) “frame,” distribute, resell, or permit access to the Self-Service Solution by any third party other than to invite Participants to participate in Studies in accordance with this Agreement; (b) permit multiple Customer Users to access the Self-Service Solution using shared login credentials (i.e., a shared email address and password); (c) use the Self-Service Solution other than in compliance with this Agreement and applicable federal, state, and local laws; (d) interfere with the Self-Service Solution or disrupt any other user’s access to the Self-Service Solution; (e) reverse engineer, attempt to gain unauthorized access to the Self-Service Solution, or attempt to discover the underlying source code or structure of the Self-Service Solution; (f) submit to the Self-Service Solution any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or any form of “spam”; (g) submit to the Self-Service Solution any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (h) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the Self-Service Solution.
3.5 Technical Specifications. Customer acknowledges that, in order to access the Self-Service Solution, its networks, equipment, software and services used to access the Self-Service Solution must comply with the technical specifications available at https://www.userzoom.com/software/features/faqs/system-requirements/, as UserZoom may update them from time to time (the “Technical Specifications”).
4. Customer Content.
4.1 Ownership of Customer Content and Study Content. As between the parties, Customer retains all right, title and interest in any and all data, files, attachments, text, images, and other content that Customer Users upload or submit to the Self-Service Solution or otherwise provides to UserZoom in connection with the Services (collectively, “Customer Content”). Customer Content includes survey answers and other data and content submitted to the Self-Service Solution by Participants. Customer represents and warrants that it has all rights, permissions and consents necessary to (a) submit all Customer Content to UserZoom, (b) grant UserZoom the limited rights to use Customer Content set forth in this Agreement, and (c) disclose and display Customer Content to its Customer Users. In addition, UserZoom agrees that the reports and information about Studies obtained by Customer from UserZoom as part of the Services (“Study Content”) will be owned exclusively by Customer (provided, however, that UserZoom retains all right, title and interest in and to reporting functionality of the Self-Service Solution).
4.2 Use of Content by UserZoom. Customer agrees that UserZoom may use the Customer Content and Study Content to make the Services available to Customer in accordance with this Section 4, including without limitation by displaying Customer Content to Participants and Customer Users. Further, UserZoom may make Customer Content available on a confidential basis to UserZoom’s service providers who act on UserZoom’s behalf in providing the Self-Service Solution; provided, that such service providers are subject to confidentiality obligations substantially as protective of the Customer Content as this Agreement, and that UserZoom will be responsible for any breach of this Agreement by such service providers in connection with the Self-Service Solution. Except as permitted in this Section 4.2, UserZoom will not disclose or display Customer Content or Study Content to any third party.
4.3 Protection of Customer Content. UserZoom will maintain commercially reasonable administrative, technical and procedural safeguards to protect Customer Content from unauthorized access, disclosure or loss, including appropriate security measures and procedures designed to ensure that access by UserZoom personnel to Customer Content is limited to personnel who need access in order to provide the Services, and limited by appropriate access control systems, procedures designed to ensure that the Self-Service Solution is protected against intrusion, and implementing and maintaining appropriate backup and recovery measures for Customer Content stored on the Self-Service Solution. If UserZoom becomes aware of a security incident on the Self-Service Solution that may affect Customer Content, UserZoom will promptly notify Customer (which may be given via email to Customer’s Administrator).
4.4 Treatment of Customer Content at Termination. The Self-Service Solution includes a feature that allows Customer to download Customer Content and Study Content at any time during the Term. UserZoom will retain Customer Content and Study Content for six (6) months after termination (the “Retention Period”) and, upon Customer’s written request during this Retention Period, will deliver Customer Content and Study Content to Customer. After the Retention Period (or as soon as reasonably possible after Customer’s written request during the Retention Period), UserZoom will permanently delete Customer Content and Study Content from its systems.
4.5 Personal Information. Customer will not request, collect or attempt to collect any Prohibited Personal Information from Participants or anyone else through the Self-Service Solution or otherwise as part of its Studies, except information collected by UserZoom Recorder (as defined in Section 8) collected in compliance with Section 8. “Prohibited Personal Information” means any and all personally identifiable information, including but not limited to home or business addresses, telephone numbers, email addresses, social security numbers, driver’s license numbers, passport numbers, taxpayer ID numbers, passwords, payment card or other personal financial information, personal health information, and educational records. Customer agrees to monitor the information collected through the Self-Service Solution for Prohibited Personal Information and, if Customer discovers that Prohibited Personal Information has been submitted to the Self-Service Solution in connection with Customer’s Studies, Customer will immediately notify UserZoom of such disclosure and cooperate with UserZoom to permanently delete any Prohibited Personal Information immediately.
5. Term & Termination.
5.1 Term. This Agreement begins on the Effective Date specified in the Service Agreement and, unless earlier terminated as provided herein, will remain in effect until the Expiration Date specified in the Service Agreement (such period, the “Term”).
5.2 Termination. Either party may terminate this Agreement immediately if the other party breaches any material provision and fails to cure its breach within thirty (30) days (or a longer period mutually agreed by the parties in writing) after receiving the other party’s written notice identifying the breach. In addition, UserZoom may discontinue Customer’s access to the Self-Service Solution immediately if Customer has breached Section 3.3, Section 4.5, or misappropriated or infringed UserZoom’s intellectual property or proprietary rights in the Self-Service Solution.
5.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all rights and obligations of the parties under this Agreement will cease, except that the following sections of the Agreement will survive any such termination or expiration: 2 (with respect to unpaid Fees, including without limitation any and all unpaid installments of Fees due for the then-current contract term), 4.1, 4.4, 5.3, 6, 7.1, 7.3, 9.1, 10, 11, 13, 14, and 15; (b) notwithstanding any provision of any surviving section, Customer and its Customer Users will have no further right to use the Self-Service Solution; and (c) Customer will not be entitled to any refund of fees paid, except that if Customer terminates the Agreement for UserZoom’s uncured breach pursuant to Section 5.2, Customer will be entitled to a pro rata refund of any prepaid, unused Fees.
6. Intellectual Property Rights in Services.
UserZoom and its licensors retain all right, title and interest in and to (a) the Self-Service Solution and the technology and software used to provide it (including without limitation the Software Tools), (b) all electronic and print documentation, audio and video material, and other content and data (excluding Customer Content and Study Content) made available through the Services, (c) all software code and other materials, ideas or deliverables that are created or prepared by UserZoom in connection with the Services, including any customizations of the Self-Service Solution (but excluding any Customer Content, Study Content, or other Confidential Information of Customer incorporated therein), and (d) all intellectual property and proprietary rights in the foregoing. Except for Customer’s rights to access and use the Self-Service Solution set forth in this Agreement, nothing in this Agreement licenses or conveys any of UserZoom’s intellectual property or proprietary rights to anyone, including Customer. Customer agrees that UserZoom will have a perpetual right to use and incorporate into the Services any feedback or suggestions for enhancement that Customer, Customer Users or Participants provide to UserZoom concerning the Services without any obligation or compensation.
7. Representations & Warranties; Disclaimer.
7.1 Mutual Representation. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
7.2 Services Warranties. UserZoom represents and warrants that all Services will be performed in a professional, workmanlike manner in accordance with industry standards.
7.3 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS-IS” AND USERZOOM MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, INCLUDING THE SELF-SERVICE SOLUTION AND ANY DOCUMENTATION, CONTENT, DATA AND MATERIALS MADE AVAILABLE WITH THE SERVICES. USERZOOM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. USERZOOM DOES NOT WARRANT THAT THE SELF-SERVICE SOLUTION OR OTHER SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, OR THAT THE RESULTS OBTAINED FROM THE SERVICES WILL MEET CUSTOMER’S NEEDS.
8. UserZoom Recorder.
The Self-Service Solution includes a feature that allows Customer to record a Participant’s activity on a web site or application tracked as part of a Study (“UserZoom Recorder”). If Customer uses UserZoom Recorder to collect any information, Customer is responsible to obtain all legally required consents from and disclose to Participants the information that Customer will collect, how Customer will use that information, and any other disclosures required by applicable law.
9.1 Confidential Information; Restrictions on Use and Disclosure. As used herein, the “Confidential Information” of a party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other party (“Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The terms and conditions of this Agreement are the Confidential Information of each party, Customer Content and Study Content are Customer’s Confidential Information (subject to Section 9.2), and the Software Tools, Technical Specifications, and documentation for the Self-Service Solution are UserZoom’s Confidential Information. Except as expressly permitted in this Agreement, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this Agreement (including, in the case of UserZoom, to provide the Self-Service Solution). Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. The Receiving Party will return or destroy all Confidential Information upon the Disclosing Party’s request after the termination or expiration of this Agreement and (if requested by the Disclosing Party) certify such return or destruction in writing.
9.2 Use and Disclosure of Customer Content. The Services are intended to facilitate collaboration between Customer Users and Participants. Accordingly, notwithstanding Section 9.1 or any provision of any separate nondisclosure agreement entered into by the parties, UserZoom may distribute and disclose Customer Content to third parties to the limited extent permitted in Section 4.2, but only as necessary to provide the Services.
10. Limitation of Liability; Damages Exclusion.
NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE ARISING UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. IN ADDITION, USERZOOM’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE FEES ACTUALLY PAID TO USERZOOM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING DAMAGES EXCLUSION AND LIABILITY LIMITATION WILL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, INTENTIONAL BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9, OR THE INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
11.1 By UserZoom. UserZoom will defend, indemnify and hold harmless Customer and its corporate affiliates, and its and their directors, officers, employees, successors, assigns and agents, from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, to the extent such claim, demand or action alleges that the Self-Service Solution, when used by Customer in compliance with this Agreement, infringes or violates any intellectual property or proprietary right of any third party; provided, that UserZoom will not be obligated under this sentence to the extent any such infringement or violation arises from (a) use of the Self-Service Solution in combination with technology or services not provided by UserZoom or (b) Customer Content.
11.2 By Customer. Customer will defend, indemnify and hold harmless UserZoom and its corporate affiliates, and its and their directors, officers, employees, successors, assigns and agents, from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, that arises out of or relates to (a) Studies or Customer Content (except to the extent such claim arises from UserZoom’s use of Customer Content in violation of this Agreement), including without limitation claims related to the collection of Prohibited Personal Information or claims that Customer Content infringes or violates a third party’s intellectual property right, violates a confidentiality obligation owed to a third party, or violates any applicable law, or (b) Customer’s breach of Section 8.
11.3 Conditions. The indemnifying party’s obligations under this Section 11 are contingent on the indemnified parties: (a) promptly providing written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control of the defense and settlement of the claim, and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim. In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent.
12.1. Coverage. UserZoom will, at its expense, procure and maintain throughout the Term the following insurance coverage: (a) Worker’s Compensation insurance in compliance with all applicable legal requirements; (b) Commercial General Liability insurance with limits of at least $2,000,000 each occurrence; and (c) Professional Liability or E&O insurance with limits of no less than $2,000,000 per occurrence.
12.2 Evidence of Coverage. Upon request, UserZoom will provide certificates of insurance evidencing coverage in compliance with the requirements of this Section 12. UserZoom will give Customer, or cause its insurers to give Customer, at least thirty (30) days’ prior written notice of cancellation or non-renewal of any insurance policy that provides any of the coverage specified in this Section 12.
Except where this Agreement permits notice via email, all notices under this Agreement must be in writing and sent via internationally recognized delivery service or U.S. mail. Notices will be deemed given five (5) business days after being sent. Notices must be addressed: if to UserZoom, to Attn: Legal, 10 Almaden Boulevard, Suite 250, San Jose, CA 95113; and, if to Customer, to Attn: Legal at the address set forth above (and, for notices permitted to be sent via email, to the email address for Customer’s Administrator).
14. Entire Agreement.
This Agreement (including the Service Agreement) represents the entire agreement between UserZoom and Customer with respect to the Services and the related matters set forth in this Agreement. As between UserZoom and Customer, this Agreement expressly supersedes (i) any terms or conditions stated in a Customer purchase order, order documentation or similar document, whether submitted or executed before or after the Effective Date, and (ii) any other contemporaneous or prior agreements or commitments regarding the Self-Service Solution or the other subject matter of this Agreement. This Agreement may be modified only in a written amendment or agreement executed by an authorized representative of each party.
The waiver of any breach of any provision of this Agreement will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this Agreement is determined by a court of competent jurisdiction to be or becomes unenforceable or invalid, such provision will be modified to render it enforceable to the extent possible to effect the parties’ intention without affecting the remaining provisions of the Agreement. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control (e.g., technology malfunctions or acts of God) (each a “Force Majeure Event”). This Agreement is governed by the internal laws of the State of California, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara County, California for any disputes arising out of this Agreement. Customer agrees that UserZoom may use Customer’s name, logos and/or trademarks in its customer list, marketing materials, and/or otherwise in connection with this Agreement with Customer’s consent (not to be unreasonably withheld). Either party may assign this Agreement to any third party acquiring all or substantially all of such party’s assets or equity securities, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement to a third party without the prior written consent of the other party. This Agreement will bind and benefit the parties, their successors, and their permitted assigns. Each party is an independent contractor to (and may not act on behalf of or bind) the other. The Service Agreement may be signed in counterparts and by facsimile, electronic signature or PDF.
16. Customer Surveys with Child Participants.
Customer will be responsible for informing UserZoom if they wish to use Participants under the age of 13 (“Child Participants”) in a Study, reasonably in advance of Customer taking such Study. In such case, Customers will obtain the correct level of parent consent required for the child to participate in the Study and will be responsible for providing notices to the parent, prior to the child participating in such Study. Customer is responsible to obtain all necessary consents from and to disclose to parents the information that Customer will collect, how Customer will use that information, and any other disclosures required by applicable law included but not limited to Children's Online Privacy Protection Act (“COPPA”). Without limiting the generality of the foregoing, if Customer uses UserZoom Recorder to collect any information from Child Participants, Customer is responsible to obtain all necessary consents from and disclose to parents the information that Customer will collect, how Customer will use that information, and any other disclosures required by applicable law included but not limited to COPPA. Customer will not condition a Child Participants inclusion in a Study on the collection of personally identifiable information and will not collect personally identifiable information in the Study. In this case personally identifiable information includes but is not limited to:
- First and last name;
- A home or other physical address including street name and name of a city or town;
- Online contact information;
- A screen or user name that functions as online contact information;
- A telephone number;
- A social security number;
- A persistent identifier that can be used to recognize a user over time and across different websites or online services;
- A photograph, video, or audio file, where such file contains a child’s image or voice;
- Geolocation information sufficient to identify street name and name of a city or town; or
- Information concerning the child or the parents of that child that the operator collects online from the child and combines with an identifier described above.