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User Terms and Conditions
The terms of service ("Terms") form a legal contract between you and UserBob LLC. ("UserBob") that governs your access and use of the UserBob services and software. By using any of the Services or the Site, you agree to be bound by these Terms. If you are using the Site or Services on behalf of an organization, you are agreeing to these Terms for that organization and representing to UserBob that you have the authority to bind the organization to their Terms (in which event, "you" will refer to the organization). You may use the Site and Services only in compliance with these Terms and only if you have the power to form a contract with UserBob and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SITE OR SERVICES.
1.0 OVERVIEW AND ORDERS
1.1 Tests and Testing Contractors
UserBob has developed a software platform ("Site") that enables users to run software usability tests ("User Tests") and allows testers selected in accordance with user direction ("Testing Contractors") to perform and record User Tests for the users. The Testing Contractors are neither employees nor agents of UserBob, but are independent service providers using the Site to provide services to you by participating in User Tests. UserBob disclaims liability for the acts or omissions by anyone who is not an employee of UserBob.1.2 Orders
UserBob shall provide you a limited right to access and use the Site for the purposes of initiating and reviewing User Tests. In addition, UserBob may perform professional services related to such User Tests ("Services") in material compliance with your on-line orders ("Order (s)"). Orders shall include any signed statements of work. Collectively, recordings (audio and video) of User Tests and Services deliverables shall be referred to as .Deliverables.. By completing an Order, you may initiate and review up to the number of User Tests that you designate in your Order within the subscription period specified in the Order (the "Order Term"). Upon completion of each User Test you initiate and review, UserBob will provide the Deliverables specified in your Order for that User Test. All Orders shall be deemed incorporated into these Terms and governed by the terms herein.1.3 User Test Video Storage
User Test Videos will be stored by UserBob for a period of thirty (30) days from their order completion date, after which, they may be removed from their respective client accounts.2.0 PRICING & PAYMENT TERMS
2.1 Pricing and Payment Terms
The rates and reimbursable expenses for access and use of the Site and the provision of the Services shall be as set forth in an Order. Additional charges will apply in the event that Client's usage of the Site or Services exceeds the baseline parameters set forth in the applicable Order. When UserBob invoices a Client for fees pursuant to an Order, Client shall pay to UserBob the full, undisputed amount of each Order within fifteen (15) days of receipt of the invoice ("Payment Period"). In the event that Client disputes an invoice, Client must notify UserBob within the Payment Period or the invoice shall be deemed undisputed. Overdue undisputed invoices that remain unpaid fifteen (15) days after receipt shall be grounds for UserBob to terminate Client's access to the Site or Services without refund of any fees paid. UserBob will not provide any refunds if Client does not initiate all of Client's designated User Tests before the end of the applicable Order Term. To initiate additional User Tests, Client must complete a new Order.2.2 Taxes
Amounts payable to UserBob under this Agreement are payable in full to UserBob without deduction and are net of taxes (including any sales, use, excise, ad valorem, property, withholding, value added tax, or other tax and any income tax withheld at source), tariff, duty or assessment levied or imposed by any government authority (including without limitation any country, state, city, county, province, department, or other subdivision of government) that may be applicable to the purchase of Software licenses or Services hereunder. Customer shall pay and shall indemnify and hold UserBob harmless from all such taxes and customs duties.3.0 INTELLECTUAL PROPERTY
3.1 UserBob Property
.UserBob Property. means any pre-existing intellectual property rights of UserBob that are utilized by UserBob in performance of its obligations under these Terms such as computer software, reports or methodologies. UserBob Property also includes any elements of Services, subject to your rights in your Confidential Information that are of general applicability to UserBob's business and provisions of services to other clients. UserBob Property will be the sole property of UserBob and, even if incorporated into a Deliverable, will not be deemed to be a Deliverable. UserBob Property shall be deemed to be UserBob's Confidential Information. UserBob hereby grants you an irrevocable, perpetual, worldwide, non-exclusive license to use the UserBob Property solely as incorporated in the Deliverables for your internal business purposes.3.2 Client Property
No Confidential Information obtained by UserBob from you shall become UserBob's property. All materials provided by you under any Orders shall be deemed .Client Property. for purposes of the Agreement. During the performance of UserBob's obligations under these Terms, and subject to UserBob's compliance with the terms of these Terms, you grant to UserBob a temporary, non-exclusive license to your Client Property solely as needed to perform UserBob's obligations in connection with these Terms; For avoidance of confusion, this license granted by you to UserBob for this purpose will expire upon the earlier of: (i) the time at which such license is no longer required by UserBob for the performance of its obligations to you, or (ii) termination of these Terms or the applicable Order. You also grant to UserBob an irrevocable, perpetual, worldwide, non-exclusive license to use the videos made by UserBob as part of your Client Property for the sole purpose of promoting the UserBob site; provided that, UserBob shall completely remove all identifying references to you before such use. No other licenses, express or implied, under any intellectual property rights are granted by you to UserBob under these Terms.3.3 Deliverables
UserBob agrees that to the extent that a Deliverable is subject to copyright: (a) every aspect thereof, other than UserBob Property that may be incorporated into the Deliverable, is a .work made for hire. (as defined in the U.S. Copyright Act); (b) you shall be considered the author of the Deliverable for all purposes; and (.) you shall be the owner of all of the rights comprised in the undivided copyright (and all renewals, extensions, and reversions thereof, and all rental rights) in and to Deliverable in perpetuity and throughout the universe. To the extent that any interest in any Deliverable may not be deemed a .work made for hire. under copyright law, UserBob hereby irrevocably assigns to you all right, title and interest in any and all rights of copyright (and all renewals, extensions, and reversions thereof) of the Deliverable other than UserBob Property. UserBob agrees that it will reasonably assist you in every appropriate way and at your cost with respect to your proprietary rights in the Deliverables.4.0 CONFIDENTIALITY
4.1 Confidential Information
Each party ("Recipient") agrees to retain in confidence any information provided to it by the other party ("Discloser") that is marked, labeled or otherwise designated as confidential or proprietary or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Discloser ("Confidential Information"). Confidential Information shall not include any information that (a) is publicly known at the time of disclosure, (b) is received by Recipient without restriction from a third party, (.) is published or otherwise made known to the public by Discloser, (d) was generated independently without reference to the other party's Confidential Information, or (e) is required to be disclosed under a court order or pursuant to any governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written notice of such disclosure, as permitted by law. Recipient shall use at least the same standard of care with the Discloser's Confidential Information as it does with its own Confidential Information, but in no even with less than reasonable care. Upon termination or expiration of these Terms, or upon Discloser's request, Recipient shall return or destroy all Confidential Information provided under these Terms. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section.4.2 Return of Confidential Information
Promptly after receipt of written request from the other party, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed.4.3 Accepted Use
Subject to the terms and conditions herein, you hereby acknowledge and agree that UserBob may compile aggregate results from all of, or a selection of, your use of the Site, provided that UserBob shall not disclose any information that would individually identify you. Such aggregate results shall be deemed to be UserBob's Confidential Information. You also hereby agree that UserBob may 1) use portions of the videos made for you to help promote the UserBob site, provided that, in such instance, UserBob will completely remove all identifying references to you and 2) review your individual use of the Site in order to provide Services to you, to evaluate UserBob's provision of Services, and to improve UserBob's service offerings.4.4 Testing Contractors Non-Disclosure Agreement
All Testing Contractors agree to terms that include confidentiality provisions. See Testing Contractors Terms of Use. that includes a provision that you are a third party beneficiary of such terms as necessary to enforce your rights. In addition, if requested by you as part of the Services, then UserBob shall facilitate the execution of a form non-disclosure agreement of your selection by each of the Testing Contractors before they perform Services for you.5.0 TERM AND TERMINATION
5.1 General
These Terms will apply commencing on the effective date of the first Order from you and will continue unless and until either party gives the other party written notice of termination. Upon notice of termination: (a) the parties will not enter into any additional Order under these Terms; and (b) each Order entered into prior to notice of termination will continue in full force and effect until completed, unless access to the Site or Service is terminated in accordance with Section 5.2 of these Terms.5.2 Termination of Orders
If either party defaults in the performance of any of its material obligations under any Order or these Terms, then the other party may terminate such Order by providing written notice of such termination (including, without limitation, a detailed description of the default and the action required to cure the default); provided, however, that such termination will not be effective if the defaulting party substantially cures the default within thirty (30) days after receipt of your notice of termination. Upon termination of any Order: (a) you will pay UserBob in accordance with Section 2 for access and use of the Site and Services performed in accordance with these Terms prior to the effective date of termination or thereafter as reasonably required for UserBob to wind up the Services under the terminated Order; and (b) UserBob will deliver to you all completed Deliverables and work in process.5.3 Survival
Upon the termination of these Terms, the parties. respective rights and obligations in the following provisions shall survive: 2.0 ("Pricing and Payment"); 3.0 ("Intellectual Property"); 4.0 ("Confidential Information"); 5.3 ("Survival"); 6.3 ("Warranty Disclaimer"); 7.0 ("Limitation of Liability and Waiver of Consequential Damages") and 8.0 ("General Provisions"), together with all other provisions that may reasonably be construed to survive.6.0 WARRANTY AND WARRANTY DISCLAIMER
6.1 UserBob Warranties
The Services provided by UserBob, if any, shall be provided in a professional and workmanlike manner. In the event of a breach of this warranty, then your sole remedy and UserBob's sole obligation shall be UserBob re-performing the Services. UserBob hereby represents and warrants that (a) UserBob has full power and authority to enter in the Agreement and these Terms will constitute a valid and binding obligation of UserBob; and (b) UserBob's execution of these Terms does not violate any other agreement to which UserBob is subject.6.2 Your Warranties
You hereby represent and warrant that (a) you have full power and authority to enter into the Agreement and these Terms will constitute valid and binding obligations; and (b) your execution of these Terms does not violate any other agreement to which you are subject.6.3 Disclaimer
OTHER THAN AS SET FORTH HEREIN, UserBob EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE SITE, THE USER TESTS OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USERTETSING PROVIDES THE SERVICES AND DELIVERABLES SOLELY FOR INFORMATIONAL PURPOSES TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.7.0 LIMITATION OF LIABILITY AND WAIVER OF CONSEQUENTIAL DAMAGES
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, BUSINESS LOSS OR ANY INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UserBob.S AGGREGATE LIABILITY FOR DIRECT DAMAGES TO YOU UNDER THESE TERMS SHALL BE LIMITED TO THE CONSIDERATION PAID OR PAYABLE BY YOU TO UserBob FOR THE USE OF SITE OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UserBob SHALL HAVE NO LIABILITY FOR ANY DAMAGES THAT MAY RESULT FROM (a) YOUR USE OR INTERPRETATION OF THE SITE, THE SERVICES OR THE DELIVERABLES or (b) THE ACTS OR OMISSIONS OF THE TESTING CONTRACTORS.8.0 GENERAL PROVISIONS
8.1 Assignment
Neither party may assign these Terms without the other party's prior written consent except in the event of a merger, acquisition, or sale of substantially all of the assigning party's assets. In no even shall the required written consent be unreasonably withheld. Any attempt to assign these Terms other than as permitted above will be null and void.8.2 Registration
To obtain access to the Site or Services, you may be required to obtain an account with UserBob by completing a registration form and designating a user ID and password. When registering with UserBob you must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete.8.3 Notices
By registering with UserBob, you understand that UserBob may send you communications or data regarding the Site and Services, including but not limited to (a) notices about your use of the Site or Services, including any notices concerning violations of use, (b) updates, and (.) promotional information and materials regarding UserBob's products and services, via electronic mail. UserBob may send you, in electronic form, information about the Service, additional information, and information the law requires UserBob to provide. UserBob may provide required information to you by email at the address you specified when you signed up for the Service. Notices emailed to you will be deemed given and received when the email is sent. If you don.t consent to receive notices electronically, you must stop using the Site or Service.8.4 Governing Law
These Terms will be governed by and construed in accordance with the laws of the State of Oklahoma without regard to its conflicts of law principles. Any legal action or proceeding relating to these Terms shall be instituted in a state or federal court in Canadian County. Each party agrees to submit to the jurisdiction of Canadian County and agrees that venue is proper in, said courts.8.5 No agency
The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. These Terms will not be construed to create or imply any partnership, agency, or joint venture. You hereby acknowledge and agree that the Testing Contractors are independent contractors of UserBob and, as such, UserBob does not control Testing Contractors.8.6 Waiver
No failure or delay by any party in exercising any right, power, or remedy under these Terms, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.8.7 Severability
If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.8.8 Force Majeure
UserBob will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.8.9 Publicity
You hereby agree that UserBob may use your company's name and logo on UserBob's client lists both on UserBob's website and on marketing presentations.8.10 Communication with Testing Contractors
You may only communicate with Testing Contractors through the UserBob.com platform, and may not contact Testing Contractors or request that Testing Contractors contact You through any other means. You may not solicit or hire any Testing Contractor to perform usability testing directly for You for a period of one year from the completion of any Study conducted on UserBob's platform with that Testing Contractor. Any such solicitation or hiring will be considered a material breach of these Terms and Conditions and may result in the termination of your UserBob account.8.11 Entire Agreement
These Terms together with any Orders constitute the complete and exclusive agreement between you and UserBob with respect to the subject matter hereof and supersedes any prior agreements and communications (both written and oral) regarding such subject matter. These Terms may only be modified or amended by a written document executed by both parties.Questions, comments and requests in relation to these Terms should be sent to john@userbob.com, or via regular mail to:
UserBob
13025 SW 47th ST
Mustang, OK 73064
Last Updated: March 5, 2015