By registering as a client with USERLYTICS™ for the purpose of conducting customer experience optimization, user experience testing, usability testing, market research, or customer and user feedback, you understand that participants/testers may access the Test Sites or Test files or any type of digital asset or experience ("Test Site") remotely, i.e., from the tester's home or workplace, or some other location from which the testers connect to the Internet.
You are responsible for making all arrangements necessary for you to have access to the Services, including and without limitation, providing suitable computer hardware and access to the Internet for reviewing test results and any authorization necessary for testers to access the Test Site for purposes of performing tests.
USERLYTICS™ shall have sole discretion in determining the appropriateness of any website or other online property or hosted software or software prototype or video files or other assets you request be included in any test. As a client, you agree (1) you will not use any robot, spider, other automatic device, or manual process to monitor or copy the pages of the Website or the Software or the Content (defined below) without the prior express written permission of USERLYTICS™; (2) you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or the Software or the Services; and (3) that the Test Site or online property or hosted software or software prototype does not contain any viruses or programs that may intentionally damage any system, data, or personal information.
If you choose to use the USERLYTICS™ Services, you agree to: (1) Provide accurate and complete registration information including an email address that is current and active; Pay for the Services in accordance with the provisions of the Website or contract or proposal; and (3) You represent and warrant that the goals and tasks that you define will not ask testers provided by Userlytics to do the following:
USERLYTICS™ reserves the right in its absolute discretion on any ground it sees fit not to accept your order or to terminate an existing order, and is under no obligation to explain its decision. In such an event a full refund will be made.
USERLYTICS™ may make changes to the content and Services offered on the Website or of the Software at any time.
USERLYTICS™ can change the terms of this Agreement at any time (including any Additional Terms). If USERLYTICS™ changes the terms of this Agreement, USERLYTICS™ will post an updated set of terms and conditions of use on this Website and USERLYTICS™ may send registered users an email notice of the changes.
If any modification is unacceptable to you, you shall cease using this Website and the Services and the Software. If you do not cease using this Website and the Services and the Software, you will be conclusively deemed to have accepted the change.
You hereby warrant that you are a corporation or other legal entity, validly formed and existing under the laws of your jurisdiction and have duly authorized your agent or agents to enter into this Agreement or, if an individual, you are of the age of majority in your place of residence.
If you purchases a paid subscription to the Services (a "Subscription"), or a Custom Project (an “Custom” or a “DIY”), or an Enterprise Plan, you shall pay all fees, including for any additional Services purchased by you, as well as any taxes, applicable to such Subscription, as published on the Website at http://www.userlytics.com from time to time, or as specified in the relevant contract of proposal. USERLYTICS™ may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then current term of your Subscription, or when you engage a new Custom or DIY or renew an Enterprise Plan.
Subscription membership in the Services and Enterprise Plans are provided on a continuous service basis. This means that, subject to the terms of this Agreement, USERLYTICS™ will automatically renew your Subscription or Enterprise Plan at the end of its term unless your Subscription or Enterprise Plan is canceled at any time prior to the end of the then-current Subscription or Enterprise Plan. You will be charged a renewal rate equal to the rate for the immediately preceding Subscription or Enterprise Plan period, based upon the Subscription program or Enterprise Plan (annual, quarterly, monthly, etc.) that you have chosen, unless USERLYTICS™ has notified you of any new rate in advance. A cancellation of a Subscription or Enterprise Plan requested by you will become effective on the date that the then-current Subscription or Enterprise Plan period expires.
If you have elected to pay the fees by credit card, you hereby warrant that the credit card information provided by you is correct, and you shall promptly notify USERLYTICS™ of any changes to such credit card information. You acknowledge and agree that if your credit card payment cannot be processed for any reason, USERLYTICS™ may suspend or cancel your Subscription or Enterprise Plan.
If you have registered for an account to use the Services, you hereby warrant that the information provided by you for the purposes of such registration is complete and accurate. You shall ensure that such information is kept up to date. Upon registering for an account, you will receive a password and an account designation. You acknowledge and agree that you, and not USERLYTICS™, are responsible for your account and all activities occurring in connection with the use of that account, whether or not you authorize such activities.
You acknowledge and agree that:
You further acknowledge and agree that USERLYTICS™ does not control the Content originating from you, testers/participants to a test, or other users of the Website or the Software or the Services, and does not guarantee the accuracy, integrity or quality of such Content. Notwithstanding the foregoing, USERLYTICS™ may review all Content, except in cases where Userlytics provides its Software for on-premise “behind the firewall” client use, and may block, modify, terminate access to, or remove any such reviewed Content that USERLYTICS™ considers, in its sole discretion, does not comply with any of the requirements of this Agreement, but USERLYTICS™ is not obligated to do so.
USERLYTICS™ reserves the right to purge Content from its databases at any time after 90 days from a Project completion without notice, unless otherwise agreed as part of a specific proposal or contract. USERLYTICS™ shall not be liable for any purging, deletion, or failure to retain any such Content.
USERLYTICS™ may disable your account and your access to use the Website and/or the Services and USERLYTICS™ may recover from you any losses, damages, costs or expenses incurred by USERLYTICS™ resulting from or arising out of your non-compliance with any provision of this Agreement.
In connection with your use of the Website and the Services, and without limiting any of your other obligations under this Agreement or applicable law, you:
You shall indemnify, defend and hold harmless USERLYTICS™, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including attorneys' fees on a full indemnity basis) arising out of or in connection with:
This Agreement shall automatically become effective upon your first use of the Website or the Software or the Services, and continue indefinitely until it is terminated.
USERLYTICS™ may cancel your Subscription (if you have one), or a Custom Project (Custom or DIY) or an Enterprise Plan and terminate this Agreement immediately by notice to you in the event that you breach any of your representations, warranties, or obligations under this Agreement (including any of your obligations under (Content) or that contravenes any applicable law.
Upon termination of this Agreement for any reason, you shall immediately cease all use of the Website and the Software and the Services, and you acknowledges and agree that USERLYTICS™ may, in its sole discretion, take any measures USERLYTICS™ reasonably deems necessary or desirable to prevent further use by you of the Website or Software or Services, including by blocking your IP address. You further acknowledge and agree that upon termination of this Agreement, USERLYTICS™ shall not be obliged to retain any of your Content (including test, survey or poll results or responses) or to provide the same to you, but may elect to do so in its sole discretion. Termination of this Agreement shall not entitle you to a refund of any Subscription or other fees previously paid by you.
The following shall survive termination of this Agreement for any reason:
USERLYTICS™ reserves the right at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, the Services or any part thereof, or your access thereto, and to modify, suspend or delete the Website or any part thereof, with or without notice. You acknowledges and agree that USERLYTICS™ shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or Software or any modification, suspension or deletion of the Website.
Without limiting the above (Provision of the Website and the Software and the Services), if you engages in excessive usage of the Website or the Software or the Services (as described in (User Conduct), USERLYTICS™ may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Website and the Software and the Services to other users, including by limiting or suspending your access to the Website and the Software and the Services, or by canceling your Subscription or Custom Project or Enterprise Plan and terminating this Agreement.
You acknowledge and agree that the Website and the Software and the Services are provided "as is," "where is," "as available," and "with all faults," and that USERLYTICS™ has no responsibility or liability for the loss or deletion of, or failure to receive, process or store any Content (including test, survey or poll results or responses) maintained or transmitted using the Services.
YOU ACKNOWLEDGE AND AGREE THAT THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE WEBSITE OR THE SOFTWARE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE WEBSITE OR THE SOFTWARE OR THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU, AND NOT USERLYTICS™, ARE RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE WEBSITE OR THE SOFTWARE OR THE SERVICES.
USERLYTICS™ MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS OF THE WEBSITE OR THE SOFTWARE OR THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION, SOFTWARE, PRODUCTS AND SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USERLYTICS™, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
If you are located in a country embargoed by the United States, or are on the U.S Treasury Department's list of Specially Designated Nationals, you are not permitted to purchase a Subscription or any other paid services from USERLYTICS™.
IN NO EVENT SHALL USERLYTICS™, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF USERLYTICS™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:
YOU SPECIFICALLY AGREE THAT USERLYTICS™, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR:
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE OR THE SOFTWARE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE WEBSITE AND THE SOFTWARE AND THE SERVICES.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, USERLYTICS™, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, USERLYTICS™'S (OR SUCH AFFILIATES', DIRECTOR'S, OFFICER'S, EMPLOYEE'S, SERVANT'S OR AGENT'S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:
YOU ACKNOWLEDGE AND AGREE THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, USERLYTICS™ WOULD NOT BE ABLE TO OFFER THE WEBSITE OR THE SOFTWARE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE YOUR REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE. Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages in certain circumstances, and so the foregoing limitation and exclusions may not apply to you to that extent.
USERLYTICS™ may extract portions (either partially or in full) of the tests that you commission and pay for and of the reports that we provide for your website/s and online properties and hosted software and software prototypes, and we may post them on our Examples and Case Studies pages and/or communicate them to third parties for marketing purposes, ONLY with your express written permission.
The Website and the Software and the Services and all information and screens appearing on this Website, including documents, services, Website design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of USERLYTICS™ or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any Userlytics Software or any copyrighted material is strictly prohibited without the express written consent of Userlytics and/or the copyright owner or licensee. USERLYTICS™ reserves all rights in the Website and the Software and the Services that are not expressly granted. Nothing in this Agreement shall be deemed to assign or transfer to you any rights to any such intellectual property. You further acknowledge and agree that Content made available to you through the Services may be subject to the intellectual property rights of third parties.
You acknowledge that you have all rights necessary to authorize USERLYTICS™ to access and permit testers to access the Test Site or other target online properties or offline assets, or to upload to a Userlytics Server software or software prototypes - for purposes of performing the Services.
USERLYTICS™ has applied for the registration of the userlytics.com logo as European Community and International registered trade marks of USERLYTICS (together the "Trade Marks").
USERLYTICS™ may provide references, frames or hyperlinks to internet websites maintained by third parties. USERLYTICS™ does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. USERLYTICS™ is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
You acknowledge and agree that you, and not USERLYTICS™, are responsible for determining which laws may apply to your use of the Website and the Software and the Services and assessing your obligations under such laws.
All notices and other communications required or permitted to be given by USERLYTICS™ to you under this Agreement will be deemed to be properly given on the date when:
You may give notices to USERLYTICS™ under this Agreement by email to firstname.lastname@example.org.
This Agreement comprises the entire agreement between USERLYTICS™ and you relating to the Website and the Software and the Services.
The use of the terms "includes" and "including", and similar terms, shall be deemed not to limit what else might be included.
This Agreement shall be governed by the laws of the State of Texas, without reference to its conflicts of law rules, and the parties hereby submit to the exclusive jurisdiction and venue of the courts of that State.
You may not assign this Agreement without USERLYTICS™'s prior written consent, which may be withheld in USERLYTICS™'s sole discretion. USERLYTICS™ may assign this Agreement at any time without notice to you.
In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable attorneys' fees and costs
The failure by USERLYTICS™ to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision of this Agreement shall be determined to be invalid or unenforceable by a court, such provision shall be deemed severable and the remainder of this Agreement shall remain in full force and effect.
Last Updated: March 12th, 2018