Terms of Service – Clients

1. DEFINITIONS

1.1 “Agreement” has the meaning set forth in the preamble.

1.2 “Aggregated Data” means data derived from Client Data that has been anonymized, de-identified, and aggregated such that it cannot reasonably be used to identify Customer or any individual.

1.3 “Authorized Users” means employees, contractors, and other individuals authorized by Customer to access or use the Services on Customer’s behalf through Customer’s account.

1.4 “BYOU Credits” means “Bring Your Own Users” Credits that may be applied to studies conducted using Participants sourced by Customer.

1.5 “Customer Content” means creative, branded, or expressive materials submitted by Customer for use in a Test, including text prompts, copy, logos, images, video, UI components, designs, or other visual or textual assets.

1.6 “Customer Data” means all data submitted to or generated through Customer’s use of the Services, including test configurations, test results, screen recordings, session data, behavioral metrics, transcripts, interaction logs, survey responses, system metadata, and diagnostic information, excluding Aggregated Data.

1.7 “Credits” means the units of account used to access the Services, including Panel Credits and BYOU Credits, as described in Section 4.

1.8 “Documentation” means Userlytics provided user guides, technical documentation, and other materials relating to the Services, as updated from time to time and made available at www.userlytics.com or such successor location.

1.9 “Effective Date” has the meaning set forth in the preamble.

1.10 “Force Majeure Event” means any event beyond a Party’s reasonable control, including acts of God, government action, flood, fire, earthquake, civil unrest, terrorism, labor disputes not involving a Party’s own employees, failure of internet service providers or telecommunications carriers, third-party cyberattacks, or pandemics.

1.11 “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, database rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world.

1.12 “Order Form” means any ordering document, online sign-up or subscription page, proposal, or other written communication, regardless of form, executed or accepted by the Parties that detail the Services to be provided and any applicable commercial terms. 

1.13 “Panel Credits” means Credits applied to studies conducted using Participants sourced from Userlytics’ proprietary research panel.

1.14 “Participants” means individuals who participate in studies or tests commissioned by Customer through the Services, whether sourced from the Userlytics panel or provided by Customer.

1.15 “Platform” means the proprietary Userlytics user research platform, including all related software, applications, tools, APIs, and infrastructure used to deliver the Services.

1.16 “Services” means the Platform, software, mobile applications, and any professional or managed research services made available by Userlytics to Customer under this Agreement, as further described in an applicable Order Form.

1.17 “Subscription Term” means the period during which Customer has an active subscription to the Services, as specified in the applicable Order Form.

1.18 “Test Site” means the website, application, prototype, or other digital or physical asset designated by Customer as the subject of a test or study conducted through the Services.

1.19 “Userlytics Intellectual Property” means the Platform, Services, Documentation, all software underlying the Services, Userlytics’ proprietary AI/ML models and methodologies, and all Intellectual Property Rights therein.

2. SERVICES

2.1 Access to the services. You may subscribe to Services by executing an Order Form. Unless otherwise specified, all Order Forms are governed by and subject to this Agreement, whether or not the Order Form references it. Subject to the terms of the Agreement, Userlytics grants Customer and its Authorized Users a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services in accordance with the Agreement, and solely for Customer’s internal business purposes and operations, during the Subscription Term.  

2.2 Authorized Users. Customer is responsible for all Authorized Users’ access to and use of the Services. Customer shall: (a) ensure that Authorized Users comply with these Terms; (b) maintain the confidentiality of all account credentials and promptly notify Userlytics of any unauthorized access or use; and (c) not allow Authorized Users to share account credentials. Customer shall be liable for any actions or omissions of its Authorized Users as if they were Customer’s own. Unless otherwise expressly permitted in an Order Form or product specific terms, each Authorized User’s account must be assigned to one person and may not be used by more than one individual. Customer may request to re-assign an Authorized User’s account, which Userlytics may agree to in its reasonable discretion.

2.3 Beta Services. From time to time, Userlytics may offer access to features, tools, or services that are in beta, preview, or early-access stage (“Beta Services“). Beta Services are provided AS IS without warranty of any kind, are not covered by any uptime or service level commitments, and may be discontinued at any time without notice. Customer’s use of Beta Services is at Customer’s sole risk. 

2.4 Feedback. If Customer provides Userlytics with suggestions, ideas, enhancement requests, feedback, recommendations, or analogous information relating to the Services, including Beta Services (“Feedback“), Customer grants Userlytics a perpetual, irrevocable, royalty-free, worldwide license to use such Feedback for any purpose, including to improve or enhance the Services, without obligation or compensation to Customer. Feedback does not constitute Confidential Information.

2.5 Third-Party Services. Userlytics may provide references, frames, or hyperlinks to 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 them. Userlytics is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties. Customer is solely responsible for evaluating and complying with the terms of any third-party services accessed in connection with the Services.

2.6 Free Services. Userlytics may, in its sole discretion, make the Services or certain features thereof available to Customer on a free trial or no-charge basis for an evaluation period specified at the time of registration or as otherwise communicated by Userlytics (collectively, “Free Services“). Free Services are made available until the earlier of: (a) the expiration of the applicable trial period; (b) the commencement of a paid Subscription Term; or (c) termination by Userlytics at any time, with or without notice, and without liability of any kind. All terms and conditions of this Agreement apply to Free Services; provided, however, that notwithstanding any other provision of this Agreement: (i) Free Services are provided strictly “AS IS” and “AS AVAILABLE” without representation, warranty, indemnity, or service level commitment of any kind; (ii) Userlytics shall have no liability whatsoever for any loss, damage, or expense arising from or in connection with Customer’s use of Free Services; (iii) Customer Data stored or generated during a free trial period may be permanently deleted upon expiration or termination of the trial, and Userlytics shall have no obligation to retain or make such data available thereafter; and (iv) Userlytics reserves the right to modify, limit, or discontinue Free Services at any time without notice or obligation. Free Services are intended solely for Customer’s internal evaluation of the platform and may not be used for production purposes, commercial research delivery, or any purpose other than assessment of the Services. Userlytics’ provision of Free Services shall not create any obligation to continue making such Services available or to offer them on any particular terms. 

3.SERVICE TERMS AND ACCEPTABLE USE

3.1 Customer Responsibilities. Customer is responsible for making all arrangements necessary to access the Services, including and without limitation, providing suitable computer hardware, access to the internet and any authorization necessary for Participants to access the Test Site. Customer agrees to: (i) provide accurate and complete registration information, including a current and active email address; (ii) pay for Services in accordance with Section 4; and (iii) ensure that goals and activities defined by Customer in any test comply with these Terms.

3.2 Log-in Credentials. Customer warrants that all information provided for account registration is complete and accurate. Customer shall ensure that registration information is kept up to date. Customer acknowledges and agrees that Customer, and not Userlytics, is responsible for Customer’s account and all activities occurring in connection therewith, whether or not authorized by Customer. Customer shall maintain the confidentiality of account credentials and shall promptly notify Userlytics upon becoming aware of any unauthorized access to or use of Customer’s account. Userlytics shall not be liable for any loss or damage arising from unauthorized use of Customer’s account credentials.

3.3 Testing Content Standards.

3.3.1	Userlytics retains sole discretion in (i) determining the appropriateness of any Test Site or other assets submitted for testing.
3.3.2	Userlytics reserves the right in its discretion to decline or terminate any project that it determines, in good faith, is inappropriate or violated applicable law. In such an event, a pro-rata refund of unused prepaid fees will be made.
3.3.3	Customer shall not require Participants to: (i) perform tasks outside the scope of remote research and user testing; (ii) engage in conduct that is demeaning, harmful, or illegal; (iii) provide sensitive personal information (including addresses, credit card numbers, social security numbers, email addresses, or driver’s license numbers) in real or simulated tests without prior written authorization from Userlytics; or (iv) access adult content, make online purchases, or interact with physical products without prior coordination with Userlytics.
3.3.4	Customer shall not direct Participants sourced through Userlytics to websites or content that are unlawful, harmful, or in violation of these Terms
3.3.5	Customer represents and warrants that, to its knowledge as of the date of submission, the Test Site does not contain any malicious code, virus, or harmful component designed to damage, disrupt, or gain unauthorized access to any system, data, or personal information. Customer acknowledges that Userlytics relies on this representation before exposing the Test Site to Participants, and that Customer bears sole responsibility for any harm arising from a breach of this warranty.

3.4 Prohibited Conduct. In connection with the Services, Customer shall not:

3.4.1	Use any robot, spider, automated device, or manual process to monitor or copy pages of the Platform or Content without Userlytics’ prior written consent;
3.4.2	Use any device, software, or routine to interfere with or disrupt the proper working of the Platform or Services;
3.4.3	Upload, post, transmit, or make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
3.4.4	Upload, post, transmit, or make available any Content that infringes any patent, trademark, trade secret, copyright, or other Intellectual Property Right of any party;
3.4.5	Upload, post, transmit, or otherwise make available any Content that Customer does not have the right to make available by reason of any law or contractual or fiduciary relationship, including inside information or proprietary or confidential information obtained in connection with an employment relationship or confidentiality agreement;
3.4.6	Upload, post, transmit, or otherwise make available any junk mail, spam, chain letters, pyramid schemes, or any similar form of unsolicited communication;
3.4.7	Upload, post, transmit, or otherwise make available any viruses, malware, ransomware, or other malicious code that may damage or disrupt any system, network, or data;
3.4.8	Impersonate any person or entity, or falsely state or misrepresent your affiliation with any person or entity;
3.4.9	Use the Services to send tests, surveys, polls, or other materials to minors without complying with all applicable laws and without first consulting with Userlytics to ensure all applicable legal protections and privacy requirements are satisfied;
3.4.10	Use the Services to collect, process, or otherwise handle Protected Health Information as defined in 45 C.F.R. § 160.103, or any other category of sensitive personal data regulated under applicable privacy laws including GDPR and CCPA, without Userlytics’ prior written consent;
3.4.11	Make video recordings, session data, or any other data relating to Participants sourced through Userlytics publicly available, share such materials with third parties for publication or public distribution, or use such materials for any purpose other than internal market research, usability testing, and user experience optimization, without the express prior written consent of Userlytics;
3.4.12	Upload test links to message boards, newsgroups, or other online communities that are unrelated to the subject matter of the study, or where such posting is prohibited, without Userlytics’ prior written consent
3.4.13	Attempt to damage, gain unauthorized access to, reverse engineer, decompile, disassemble, or otherwise interfere with the Platform or Services; or
3.4.14	Use the Services in a manner that materially and adversely affects the speed, responsiveness, stability, or availability of the Platform for other users..

Customer acknowledges that Userlytics may cooperate with governmental authorities in connection with any investigation into Customer’s use of the Services and may disclose Content and information pertaining to Customer to such authorities as required by applicable law.

3.5 Compliance with Law. Customer shall comply with: (a) these Terms and all Userlytics policies published on the Userlytics website from time to time; (b) all applicable U.S. federal, state, local, and international laws, including the CAN-SPAM Act of 2003, the CCPA, as well as, the European GDPR, and all other applicable data protection and privacy laws; and (c) all applicable regulations promulgated by regulatory authorities, including the U.S. Securities and Exchange Commission and comparable international bodies.

3.6 Participant Consent. Customer is solely responsible for obtaining all legally required consents, disclosures, and agreements from Participants prior to and in connection with any study or research session, including any non-disclosure agreements, informed consent forms, and enhanced consent required under applicable law for the collection or processing of sensitive personal data, including without limitation data relating to racial or ethnic origin, health, sexual orientation, religious beliefs, political opinions, or criminal background. To the extent Customer uses the Services in connection with clinical trials or regulated research, Customer is solely responsible for compliance with all applicable legal and regulatory requirements, including obtaining informed consent and any necessary approvals from an Institutional Review Board or equivalent body.

Userlytics may, upon written request, assist in administering consent instruments to Participants as an additional service, subject to separate pricing and any additional terms to be set forth in the applicable Order Form. Such assistance does not transfer to Userlytics any responsibility for the legal sufficiency or enforceability of such instruments, for which Customer remains solely liable.

3.7 Non-Circumvention. Customer agrees that it shall not: (a) contact, solicit, or engage any Participant sourced through the Services outside of the specific study or project for which such Participant was recruited, unless all such communication is conducted through the Platform or as strictly necessary to facilitate an active research session; or (b) take any action designed to encourage, solicit, or recruit any Userlytics-sourced Participant to participate in Customer’s research activities through any channel other than the Services. For the avoidance of doubt, nothing in this Section restricts Customer from engaging a Participant who independently initiates contact with Customer through their own outreach or through a separate vendor relationship unconnected to the Services.

4. SUBSCRIPTIONS AND PAYMENT

4.1 Fees and Payment. Customer shall pay all fees set forth in the applicable Order Form, including fees for any additional Services purchased during the Subscription Term. All fees are due and payable upon receipt of invoice, unless a different payment schedule is specified in the Order Form. All payments shall be made in full, without set-off or deduction. Fees are stated exclusive of all applicable federal, state, local, and VAT taxes, which shall be separately itemized and added to invoiced amounts at the time of invoicing. Customer is responsible for all such taxes, excluding taxes based on Userlytics’ net income. Payments may incur an additional processing fee to be borne by Customer. Userlytics may change such fees at any time and in its sole discretion, provided that any increase shall become effective at the end of the then current term of your Subscription Term. Any decrease to fees shall become effective immediately.

4.2 Credit Structure. The Services are accessed by consuming Credits. Credits may be issued as Panel Credits, BYOU Credits, or such other types as designated in the Order Form, each subject to any specific terms or consumption rules set forth therein. All Credits, including any Credits purchased additionally during a Subscription Term, expire at the end of the Subscription Term in which they were issued and do not carry over to any renewal or subsequent Subscription Term, unless otherwise expressly specified in the applicable Order Form. Where the Order Form designates more than one type of Credit, Credits shall be consumed in the order of priority specified in the Order Form. In the absence of a specified priority order, Credits shall be consumed in the order in which they were issued, earliest first. Credits are non-transferable, have no cash value, and may not be exchanged, redeemed, or applied toward any purpose other than the Services described in the applicable Order Form.

4.3 Insufficiency of Credits. Any Credit estimates or projections provided by Userlytics, whether in a proposal, Order Form, account management communication, or otherwise, are good-faith approximations only and do not constitute a guarantee, representation, or warranty that the Credits purchased will be sufficient to fulfill any particular project objective. Customer is solely responsible for maintaining an adequate Credit balance throughout the duration of any active project or study. In the event that Customer’s Credit balance is insufficient to complete a project or fulfill a recruitment request, Userlytics shall have no obligation to continue delivery and may, at its discretion and without liability to Customer: (i) pause or suspend the project until sufficient Credits are available; (ii) invoice Customer for additional Credits necessary to complete the project, which Customer agrees to pay in accordance with Section 4.1; or (iii) close the project as fulfilled if Customer does not purchase additional Credits within a commercially reasonable timeframe following Userlytics’ written notice of the shortfall. Userlytics shall not be liable for any delays, incomplete deliverables, or unmet project objectives arising from an insufficiency of Credits, regardless of whether such insufficiency was foreseeable at the time of purchase or arose from estimates or guidance provided by Userlytics or its representatives. Customer’s sole remedy in the event of a Credit shortfall is to purchase additional Credits in accordance with this Section.

4.4 Auto-Renewal. EACH SUBSCRIPTION TERM WILL AUTOMATICALLY RENEW AT THE END OF THE CURRENT PERIOD FOR THE SAME DURATION AND CREDIT VOLUME, UNLESS EITHER PARTY GIVES WRITTEN NOTICE OF NON-RENEWAL AT LEAST THIRTY SIXTY (360) DAYS BEFORE THE RENEWAL DATE. The price per Credit applicable to any renewal will reflect Userlytics’ pricing in effect at that time. Renewal fees are invoiced on the renewal date and governed by Section 4.1. Customer is responsible for tracking its renewal dates. Any renewal reminders provided by Userlytics are a courtesy only and do not alter Customer’s responsibility to manage its own subscription. Renewal is automatic and self-executing upon expiration of the current Subscription Term. No new Order Form or countersignature is required for a renewal to be valid and binding. Each renewal Subscription Term is governed by the version of these Terms in effect at the time of renewal, together with the commercial terms of the applicable Order Form. Any confirmation issued by Userlytics is a courtesy record only and is not a condition of the renewal’s validity. Customer’s continued use of the Services on or after the renewal date constitutes acceptance of the renewal, the applicable fees, and the Terms then in effect.

4.5 Late Payment. If Customer elects to pay by credit card, Customer warrants that all credit card information is accurate and shall promptly notify Userlytics of any changes. If payment cannot be processed for any reason, Userlytics may suspend or cancel the applicable Subscription. Undisputed invoices not paid within the applicable payment period shall accrue interest at an annual rate of 20% or the maximum rate permissible under applicable law, whichever is lower, from the date payment was due until the date payment is made. If Userlytics engages external counsel, a collection agency, or any other third party to recover overdue amounts, Customer shall be liable for all reasonable costs of collection, including attorneys’ fees, collection agency fees, and court costs, in addition to the outstanding amount and accrued interest. Disputes regarding invoiced amounts must be raised in good faith within five (5) days of the invoice date. Customer may withhold disputed amounts pending resolution; undisputed amounts remain due and payable.

5. CUSTOMER DATA AND CONTENT

5.1 Ownership and License.  Customer retains all right, title and interest in and to all Customer Data and Customer Content. All activities, survey questions, data, text, photographs, images, video, survey responses, and other materials communicated or transmitted using the Services by the Customer (“Customer Content”) are the sole responsibility of Customer. Customer, and not Userlytics, is responsible for all Content uploaded, posted, transmitted, or otherwise made available through Customer’s account, whether or not authorized by Customer.

Customer hereby grants to Userlytics a non-exclusive, royalty-free, worldwide, sublicensable license to access, use, reproduce, display, transmit, and create derivative works of Client Data, Client Content, and any other materials or assets submitted by Customer or its Authorized Users in connection with the Services (collectively, “Customer Property“), solely to the extent necessary to: (a) perform Userlytics’ obligations under this Agreement and any applicable Order Form; (b) operate, maintain, support, and improve the Platform and Services; and (c) permit Userlytics’ affiliates, subcontractors, and third-party service providers to use and process Customer Property insofar as required to fulfill Userlytics’ obligations hereunder, including without limitation displaying or transmitting Customer Property to Participants in the course of conducting studies or tests commissioned by Customer. This license shall remain in effect for the duration of the Agreement and shall terminate upon the expiration or earlier termination of the Agreement, except to the extent that continued use is required to fulfill any surviving obligation or to comply with applicable law. Nothing in this Section shall be construed to grant Userlytics any ownership interest in Customer Property or any right to use Customer Property for any purpose beyond those expressly set forth herein.

Notwithstanding the foregoing, Userlytics shall own all rights, title, and interest in and to Aggregated Data, and all insights, analytics, models, and outputs derived therefrom.

5.2 Research Participants. You further acknowledge and agree that Userlytics does not control the Content originating from you, 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.

5.3 Customer Data Deletion and Export. Userlytics will purge Customer Property from its databases 365 days after the end of your contractual relationship with Userlytics, unless otherwise agreed as part of a specific proposal or contract, or unless requested to do so earlier by you. Userlytics shall not be liable for any purging, deletion, or failure to retain any such Customer Property. Customer agrees that Customer is solely responsible for exporting Customer Data prior to the end of the deletion schedule.

6. SERVICE IMPROVEMENT AUTHORIZATION

6.1 Processing Authorization. Subject to the terms of this Agreement, Customer authorizes Userlytics to access and process Customer Data and Customer Content for the following purposes, and Client hereby instructs Userlytics to process its Client Data and Client Content for such purposes:

• To train and improve Userlytics machine learning and AI models;
• To improve the functionality, accuracy and performance of Services and features, including those that may be accessible to Customer;
• To support the development of new features or services that may be made available to Customer, including through general platform releases or feature upgrades;
• As otherwise permitted in the Agreement.

Notwithstanding the foregoing, Userlytics will not use Customer Data to train general-purpose models that are made available to third parties outside of the Userlytics platform without Customer’s prior written consent. Userlytics shall implement appropriate technical and organizational measures to protect Customer Data used for the purposes of this Section 6.

6.2 Aggregated Data. Customer retains ownership of Customer Data and Customer Content. Userlytics retains all rights, title, and interest in and to Aggregated Data, including statistical insights, benchmark data, usage patterns, and performance metrics, derived from the processing of Customer Data across its client base. Userlytics may use Aggregated Data to maintain, improve, and develop its services without restriction.

6.3 AI Features. “AI Features” means any features or functionality within the Services that leverage artificial intelligence, machine learning, large language models, or similar technologies to process inputs and generate outputs, including automated transcription, sentiment analysis, theme identification, AI-assisted synthesis, and any other AI-powered research tools made available by Userlytics from time to time. “AI Inputs” means any data, content, text, recordings, prompts, study materials, or other materials of any nature submitted by Customer or any Authorized User as inputs to the AI Features. 

Userlytics may engage third-party artificial intelligence providers to power certain AI Features. Where it does so, Customer Data processed through such features may be transmitted to and processed by those providers, subject to appropriate data processing agreements and confidentiality obligations.

6.4 AI Outputs. “AI Outputs” means any results, insights, summaries, recommendations, transcripts, classifications, or other materials of any nature generated through Customer’s or any Authorized User’s use of the AI Features. AI Features are made available as part of the Services and may be updated, modified, or discontinued by Userlytics at any time. Customer acknowledges and agrees that: (a) AI Outputs may be incomplete, incorrect, or inconsistent, and that similar or identical outputs may be generated independently for other customers of the Services; (b) Customer bears sole responsibility for evaluating the accuracy, suitability, and fitness of any AI Output prior to any use or reliance thereon; (c) for any decision of material consequence, Customer shall apply independent human review and judgment before acting on any AI Output; and (d) nothing in this Agreement shall be construed to impose any obligation on Userlytics to review, verify, or correct any AI Output generated through Customer’s use of the AI Features. Userlytics makes no covenants, representations, or warranties regarding any AI Outputs, including, without limitation, with respect to the accuracy, quality, or usefulness of any AI Outputs. Customer is solely responsible for any use of or reliance on AI Outputs.

6.5 AI Training. Userlytics may use AI Inputs and AI Outputs in aggregated or de-identified form for the purpose of maintaining, analyzing, and improving its own AI Features and the Services generally. Customer shall not use the Services, including any AI Outputs, to develop, train, benchmark, or improve any artificial intelligence or machine learning system, algorithm, or model that competes with or replicates the functionality of the Services, whether directly or through a third party.

7. CONFIDENTIALITY

7.1 Confidential Information. The Parties may disclose to each other certain non-public, proprietary, or confidential information in connection with this Agreement (“Confidential Information”). Confidential Information includes, without limitation, the terms of this Agreement, Order Forms, business plans, technical information, pricing, customer data, research methodologies, product roadmaps, and any other information designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure.

Each Party (as “Receiving Party“) agrees to: (a) hold the other Party’s (“Disclosing Party’s“) Confidential Information in strict confidence using at least the same degree of care it uses for its own Confidential Information, but no less than reasonable care; (b) use Confidential Information only for the purpose of exercising rights or fulfilling obligations under this Agreement; (c) not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party, except to its employees, contractors, and advisors who need to know such information and who are bound by obligations at least as protective as those contained herein; and (d) promptly notify the Disclosing Party upon becoming aware of any unauthorized disclosure or use of Confidential Information.

Confidential Information does not include information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) is rightfully known to the Receiving Party before disclosure without confidentiality obligations; (c) is independently developed by the Receiving Party without use of or reference to Confidential Information; or (d) is rightfully received from a third party without confidentiality obligations.

7.2 Required Disclosure. If the Receiving Party is required by law or court order to disclose Confidential Information, it shall, to the extent permitted by law: (a) provide the Disclosing Party with prompt prior written notice; (b) cooperate with the Disclosing Party in seeking a protective order or other appropriate relief; and (c) disclose only that portion of Confidential Information required by the applicable law or order.

7.3 Participants. Customer acknowledges that the Participants provided by Userlytics as part of the Services are not employees or contractors of Userlytics and are not under Userlytics’ direct control. Userlytics may have confidentiality provisions in place with Participants and shall collaborate with Customer in any action reasonably advisable in relation to Participant noncompliance with such provisions. Userlytics does not assume responsibility for the actions or omissions of Participants and shall be held fully harmless in relation thereto. Customer may execute separate confidentiality agreements directly with Participants.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Userlytics Intellectual Property. The Platform, Services, Documentation, and all information, screens, documents, software, text, graphics, logos, images, and icons appearing on the Platform are the sole property of Userlytics or its third-party licensors. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission, or publication of any Userlytics Software or copyrighted material is strictly prohibited without the express written consent of Userlytics or the applicable copyright owner. Userlytics reserves all rights not expressly granted. Nothing in this Agreement shall be deemed to assign or transfer to Customer any rights to Userlytics Intellectual Property.

8.2 Customer Intellectual Property. As between the Parties, Customer retains all right, title, and interest in and to Customer Data and Customer Content. Customer acknowledges that Content made available through the Services may be subject to the Intellectual Property Rights of third parties, and Customer represents that it has all rights necessary to make such Content available. Customer acknowledges that it has all rights necessary to authorize Userlytics to access and permit Participants to access the Test Site and other target assets for purposes of performing the Services.

8.3 Logo Usage. Customer authorizes Userlytics to make reference to Customer’s name and logo on Userlytics’ website as a statement of the commercial relationship between the Parties. Customer may withdraw such consent at any time by providing written notice to Userlytics. Userlytics may not extract portions of tests commissioned by Customer or reports prepared for Customer and use them for marketing purposes without Customer’s prior express written consent.

8.4 Participant Information. As between Userlytics and Customer, all data about any Participant that is presented by, generated through, or stored as part of the Services, including without limitation contact details, demographic information, screening responses, behavioral data, and panel membership information (collectively, “Participant Information“), is and shall remain the sole and exclusive property of Userlytics. Userlytics grants Customer a limited, non-exclusive, non-transferable right to access and use Participant Information solely on a study-by-study basis and only to the extent necessary to facilitate the applicable research session. Customer shall not: (a) retain, compile, or add Participant Information to any contact list or database; (b) transfer, sell, or disclose Participant Information to any third party; or (c) publicly disseminate or otherwise place Participant Information in the public domain, in any form or for any purpose.

9. INDEMNIFICATION AND LIMITATION OF LIABILITY

9.1 Customer Indemnification. Customer shall indemnify, defend and hold harmless Userlytics, its affiliates, and its respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including reasonable attorneys’ fees) arising out of or in connection with:

9.1.1	Customer use of the Platform or Services, including your use of or reliance on any information or materials obtained through the use of the Website or the Software or the Services;
9.1.2	any use of the Services by a third party using your account (whether or not authorized by you)
9.1.3	Your breach of this Agreement, including any representations and warranties.

9.2 Userlytics Indemnification. Userlytics shall indemnify, defend and hold harmless Customer, your affiliates, and your respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including reasonable attorneys’ fees) arising out of or in connection with:

9.2.1	Userlytics’ material breach of this Agreement, including any representations and warranties,
9.2.2	Userlytics’ infringement of any third party’s Intellectual Property Rights in the Services as provided to Customer (excluding any infringement arising from Customer’s modifications or Customer-supplied content); or
9.2.3	Userlytics’ gross negligence or willful misconduct.

9.3 Indemnification Procedure. The indemnified party shall: (a) promptly notify the indemnifying party in writing of any claim for which indemnification is sought; (b) give the indemnifying party sole control over the defense and settlement of the claim; and (c) provide reasonable assistance to the indemnifying party at the indemnifying party’s expense. The indemnifying party shall not settle any claim in a manner that imposes liability or obligations on the indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld or delayed.

9.4 Exclusion of Liability. IN NO EVENT SHALL USERLYTICS, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY 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.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL USERLYTICS BE LIABLE TO THE CUSTOMER FOR ANY ACTS OR OMISSIONS BY ANY PARTICIPANT OR ANY LOSSES WHATSOEVER WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY PARTICIPANT.

9.5 Aggregate Liability Cap. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, USERLYTICS IS FOUND LIABLE TO CUSTOMER UNDER THIS AGREEMENT, USERLYTICS’ TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO USERLYTICS UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, USERLYTICS WOULD NOT BE ABLE TO OFFER THE SERVICES AT THE PRICES CHARGED, AND THAT SUCH EXCLUSIONS AND LIMITATIONS SHALL APPLY EVEN IF THEY CAUSE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE.

9.6 Exceptions to Cap. Notwithstanding the foregoing, the liability cap in Section 9.8 shall not apply to: (i) either Party’s liability arising from willful misconduct or gross negligence; (ii) death or personal injury caused by a Party’s negligence or (iii) fees owing to Userlytics. In all such cases, the Party’s liability shall be limited to the extent permitted by applicable law.

10. TERM AND TERMINATION.

10.1 Term. This Agreement commences on the Effective Date and continues until the expiration or termination of all Order Forms, unless earlier terminated in accordance with this Section 10.

10.2 Termination for Cause. Either Party may terminate this Agreement or any Order Form upon written notice to the other Party if the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice describing the breach. In the event of termination by Customer for Userlytics’ uncured material breach, Customer shall be entitled to a pro-rata refund of prepaid, unused fees corresponding to the remaining portion of the applicable Subscription Term. Userlytics may suspend or terminate Customer’s access to the Services upon written notice (or immediately in cases of serious harm to the platform or other users) if Customer breaches any material obligation under this Agreement, including the Acceptable Use provisions in Section 3, or if Customer violates applicable law or regulation. In such event, no refund of prepaid fees will be provided where Customer is terminated for cause.

10.3 Effect of Termination. Upon termination of this Agreement for any reason, you shall immediately cease all use of the Services, Userlytics may, in its sole discretion, take any measures Userlytics reasonably deems necessary or desirable to prevent further use by Customer, 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 Customer Content or Customer Data. Termination of this Agreement shall not entitle you to a refund of any Subscription or other fees previously paid by you, other than because of a breach by Userlytics.

10.4 Survival. The following provisions shall survive termination of this Agreement: Section 1 (Definitions), Section 6 (Customer Data and Content), Section 7 (Service Improvement Authorization), Section 8 (Confidentiality), Section 9 (Intellectual Property Rights), Section 10 (Indemnification), Section 11.3 (Disclaimers), Section 12 (Limitation of Liability), Section 13 (Term and Termination), and Section 15 (General Provisions), as well as all payment obligations accrued prior to termination.

11. WARRANTIES AND DISCLAIMERS

11.1 Mutual Warranties. Each Party represents and warrants to the other that: (i) it has full power and authority to enter into this Agreement; (ii) this Agreement constitutes a legal, valid, and binding obligation of such Party; and (iii) its execution and performance of this Agreement does not violate any applicable law or any agreement to which it is a party.

11.2 Userlytics Service Warranties. Userlytics represents and warrants that: (a) it will perform the Services in a professional and workmanlike manner consistent with applicable industry standards; (b) the Services, as provided by Userlytics, will not, to Userlytics’ knowledge, infringe any third party’s Intellectual Property Rights; and (c) Userlytics will comply in all material respects with applicable data protection laws in connection with its processing of Customer’s personal data.

11.3 Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USERLYTICS, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USERLYTICS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE. USERLYTICS MAKES NO REPRESENTATIONS REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, OR QUALITY OF THE SERVICES.

CUSTOMER ACKNOWLEDGES THAT IT, AND NOT USERLYTICS, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE SERVICES.

IF CUSTOMER IS LOCATED IN A COUNTRY EMBARGOED BY THE UNITED STATES, OR IS ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS, CUSTOMER IS NOT PERMITTED TO PURCHASE SERVICES FROM USERLYTICS.

12. ADDITIONAL SERVICES TERMS

12.1 Service Modifications. Userlytics reserves the right at any time to modify, suspend or discontinue, temporarily or permanently, the Services or any part thereof, with or without notice. Userlytics will use commercially reasonable efforts to provide Customer with advance notice of any material, permanent discontinuation of Services. Customer shall receive a pro-rata refund of prepaid, unused fees in the event of any permanent discontinuation of the Services provided to you under an Order Form, that is not attributable to Customer’s breach.

12.2 Modifications to Terms. Userlytics may modify these Terms from time to time. You acknowledge and agree that Userlytics shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

13. GENERAL PROVISIONS

13.1 Governing Law. All disputes arising under this Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to principles of conflict of laws.

13.2 Dispute Resolution and Arbitration. The Parties agree to attempt to resolve any dispute arising under this Agreement through good-faith negotiation between senior representatives of the Parties for a period of thirty (30) days following written notice of a dispute (the “Negotiation Period”). If the dispute is not resolved during the Negotiation Period, the Parties will submit all disputes arising under this Agreement to binding arbitration in Miami, Florida, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. The arbitrator shall be selected in accordance with AAA rules. The arbitration shall be conducted in the English language. The arbitrator’s decision shall be final and binding on both Parties and may be entered as a judgment in any court of competent jurisdiction. Nothing herein shall prevent either Party from seeking emergency or interim injunctive relief from a court of competent jurisdiction pending arbitration. In any dispute arising out of this Agreement that proceeds to litigation or arbitration, the substantially prevailing Party shall be entitled to payment of its reasonable attorneys’ fees and costs.

13.3 Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s prior written consent, not to be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement without the other Party’s consent to: (a) an affiliate; or (b) a successor entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of such Party’s assets, so long as the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

13.4 Force Majeure. Neither Party shall be in default or liable to the other for any delay or failure to perform its obligations under this Agreement to the extent such delay or failure is caused by a Force Majeure Event, provided that: (a) the affected Party promptly notifies the other Party in writing of the nature and anticipated duration of the Force Majeure Event; (b) the affected Party uses commercially reasonable efforts to mitigate the impact of and to overcome the Force Majeure Event; and (c) the Force Majeure Event does not continue for more than sixty (60) days, after which either Party may terminate the affected Order Form without liability upon written notice. Force Majeure Events do not excuse Customer’s payment obligations for Services already rendered.

13.5 Notices. 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:

13.5.1	posted on the Userlytics Platform or website,
13.5.2	sent by email to the email address for you last recorded by Userlytics, or
13.5.3	sent by postal mail to the postal address for you last recorded by Userlytics.

You may give notices to Userlytics under this Agreement by email to legal@userlytics.com.

13.6 Non-Solicitation. During the business relationship and for a period of twelve (12) months following the termination of this Agreement, neither Party will actively solicit any employee of the other Party’s business or any of its subsidiaries or affiliates, without the prior written consent of the other Party. This restriction shall not be construed as preventing either Party from hiring a person who responds to a general public hiring advertisement and is not proactively solicited by such Party.

13.7 Export Controls.  Customer shall comply with all applicable export control and trade sanctions laws and regulations, including those of the United States, European Union, and United Kingdom, as applicable. Customer represents that neither it nor any of its Authorized Users is located in, or ordinarily resident in, any embargoed country or territory, or is identified on any government-maintained restricted party or denied persons list, including the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List. Customer shall not access or use the Services in any manner that would cause Userlytics to violate applicable export control or sanctions laws and will not nor will it permit access or use the Services or upload any content, data or other information in violation of any USA, UK, EU or other applicable export law or regulation.

13.8 Entire Agreement. This Agreement, together with all Order Forms and documents incorporated by reference, constitutes the entire agreement between Userlytics and Customer relating to the Services and supersedes all prior agreements, negotiations, representations, and proposals (oral or written) relating to the subject matter hereof. In the event of any conflict between these Terms and an Order Form, the Order Form shall control with respect to the specific commercial terms covered therein, and these Terms shall control in all other respects.

13.9 Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed severable and modified to the minimum extent necessary to make it valid and enforceable, and the remainder of this Agreement shall remain in full force and effect.

13.10 Waiver. The failure by either Party 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. A waiver of any breach of this Agreement must be in writing and shall not be deemed a waiver of any subsequent breach.

13.11 Interpretation.The use of the terms “includes” and “including”, and similar terms, shall be deemed not to limit what else might be included. . Section headings are for convenience only and shall not affect the interpretation of this Agreement. This Agreement shall not be construed more strictly against either Party as the drafter.

13.12 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed valid and binding to the same extent as original signatures.