Effective Date: March 31, 2017
End User Agreement
You (“Customer”) and Truthlab Technologies, Inc. (“Truthlab”) agree to be bound by the following terms:
1.1 Scope. These terms apply to Customer’s use of the online services and related online training and if applicable, packaged professional services offered by Truthlab (collectively, the “Platform”) that are listed in one or more Truthlab ordering documents signed by the Parties (each an “Order”). The Platform includes, but is not limited to, software to manage the participants (“Tester(s)”) who participate in usability and user experience studies (“Study(ies)”) on behalf of Customer. These terms and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Procurement and Provisioning by Affiliates. Customer may use the Platform under this Agreement for its own account and on behalf of one or more Customer Affiliates (defined below). Customer is responsible for the acts and omissions of Customer Affiliates under any Order pursuant to which the Customer Affiliate receives the benefit of the Platform but is not a signatory. Additionally, Customer Affiliates may procure the Platform directly under this Agreement pursuant to an Order executed by such Customer Affiliate and Truthlab. Customer Affiliates who sign an Order will be deemed to be the Customer hereunder and solely responsible for its performance or non-performance thereunder. “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership of a majority share of the stock, equity or voting interests of such entity.
1.3 Platform Users. During the term (“Subscription Term”) set forth in each Order, Truthlab will make the Platform available to Customer and its authorized Affiliates, employees, agents or contractors (“Users”), for access and use by such Users solely for Customer’s internal business purposes in accordance with the terms of the Agreement. Customer is responsible for use of the Platform by Users and any party who accesses the Platform with Customer’s or a User’s account credentials.
2.1 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly (i) make the Platform available to anyone other than Users or use the Platform for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Platform; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform or any software, documentation or data related to or provided with the Platform; (iv) modify, translate or create derivative works based on the Platform or remove any proprietary notices or labels from the Platform; (v) use or access the Platform to build or support, and/or assist a third party in building or supporting products or services competitive to the Platform; or (vi) include the Platform in a service bureau or outsourcing offering.
2.2 Usage Rights. Customer will always ensure that its use of the Platform does not exceed the usage terms specified in the Order (“Usage Rights”). If Truthlab determines that Customer is exceeding the Usage Rights, Truthlab will notify Customer, and Customer will have 30 days from the date of notice to bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days, Truthlab has the right to charge Customer, and Customer agrees to pay, for the applicable usage tier, which will be co-termed with the Subscription Term in the applicable Order.
2.3 Suspension. Truthlab may immediately suspend Customer’s account and access to the Platform if (i) Customer fails to make payment due within 10 business days after Truthlab has provided Customer with written notice of such failure or (ii) Customer violates Section 2.1 (Restrictions). Any suspension by Truthlab of the Platform under the preceding sentence will not relieve Customer of its payment obligations hereunder.
3.1 Truthlab Platform. Customer acknowledges that the Platform is offered online on a subscription basis. Truthlab reserves all rights, title and interest in and to the Platform, including any software or documents related to or provided with the Platform and all intellectual property rights and derivatives, modifications, refinements or improvements thereto. From time to time, Customer or its users may submit to Truthlab comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Subscription Services (“Feedback”). Customer agrees that Truthlab has all rights to use and incorporate Feedback into the Platform without restriction or payment to Customer. No rights are granted to Customer other than as expressly set forth herein.
3.2 Customer Data. Customer owns any data, information or material originated by Customer or that Customer provides while using the Platform, including linked websites and information regarding Customer’s Testers uploaded to the Platform (“Customer Data”). Customer will be solely responsible for (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users outside of the Platform; and (ii) all applicable privacy laws related to procurement and use of Customer Data. Customer Data is Customer’s Confidential Information.
3.3 Statistical Information. Truthlab may monitor Customer’s use of the Platform and compile Customer Property with other data in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Platform and may make such information publicly available, provided that such information does not include any data that would enable the identification of Customer or Customer Property, or the disclosure of Customer Confidential Information. Truthlab retains all rights, title and interest in and to such statistical and performance information.
4.1 Fees. Customer will pay all fees set forth in the Orders and any fees invoiced pursuant to this Agreement. All fees are non-cancelable and nonrefundable, except as expressly specified in the Agreement. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Taxes and Currency. All fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Subscription Services. Customer is not responsible for any taxes based on Truthlab’s net income or property. Except as otherwise specified in an Order, all fees due hereunder will be paid in U.S. Dollars.
4.3 Invoices. All amounts are due and payable as specified in the Order. If no payment terms are specified in the applicable Order, payment terms are net 30 days from receipt of invoice. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
5.1 Confidential Information. Each party (“Recipient”) agrees to retain in confidence any non-public 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”). Without limiting the generality of the foregoing, Confidential Information will include, without limitation, any Personally Identifiable Information shared in connection to this Agreement or in any Study. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is publicly known at the time of disclosure, (b) is received by Recipient from a third party without restriction on disclosure and without breach of a non-disclosure obligations, (c) 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) Recipient rightfully knew prior to receiving such information from the Discloser. Recipient shall not disclose to any third party or use any Confidential Information disclosed to it by Discloser except to Recipient’s personnel who are required to have access to the Confidential Information to fulfill performance of this Agreement, provided that all such personnel shall be obligated in writing to maintain the confidentiality of any such Confidential Information, or as otherwise expressly permitted in this Agreement, and provided further that Recipient shall obtain Discloser’s written consent (in each instance) prior to disclosing any Personally Identifiable Information received from or through Discloser. Recipient will use at least the same standard of care with the Discloser’s Confidential Information as it does with its own Confidential Information to maintain the confidentiality of the Confidential Information in its possession or control, but in no event with less than reasonable care. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to notify the other party in advance of such disclosure so as to permit the other party to request confidential treatment or a protective order prior to such disclosure; and (ii) on a “need-to-know” basis to its financial advisors, lawyers or other advisors who are obligated to maintain the confidentiality of such information. Each party acknowledges that breach of this provision may 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.
5.2 Testers’ Personally Identifiable Information. Customer use of the Platform may result in the uploading of Personally Identifiable Information (“PII” defined as information that can be used to identify an individual, including but not limited to, name, date of birth, social security number, email, postal address, phone number and any other information that, either alone or in combination with other data, could be used to identify or contact a person) and/or the collection of PII in Studies. Customer acknowledges the risks inherent in uploading and/or the collection of PII, and Customer disclaims all liability against Truthlab for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Customer due to the collection, use, transfer, or other processing of Testers’ PII in connection to the Customer’s use of the Platform or any Customer Studies.
5.3 Return or Destruction of Confidential Information. Upon termination or expiration of the Agreement, or upon Discloser’s request, Recipient shall (at Discloser’s option) return, destroy, or render inaccessible all Confidential Information provided to it by Discloser under the Agreement. Promptly after receipt of written request from the other party, each party shall either promptly return the other party’s Confidential Information in its possession or control, or confirm that such Confidential Information has been destroyed or rendered inaccessible.
5.4 Testers and Testers’ Non-Disclosure Agreement. Truthlab will ensure that all Testers agree to terms that include confidentiality provisions prior to participating in any Studies hereunder. Customer will be a third-party beneficiary of such terms as necessary to enforce its rights.
6.1 Agreement Term. This Agreement will apply commencing on the Effective Date of the first Order from Customer 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 this Agreement; and (b) each Order entered into prior to notice of termination will continue in full force and effect until completed, unless access to the Platform or Service is terminated in accordance with Section 6.2 of this Agreement.
6.2 Termination of Orders. If either party defaults in the performance of any of its material obligations under any Order or the terms of this Agreement, then the other party may terminate such Order or this Agreement by providing written notice of such termination (including, without limitation, a reasonably 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 cures the default within thirty (30) days after receipt of such notice of termination. Customer will pay Truthlab in accordance with Section 4 for access and use of the Platform in accordance with this Agreement prior to the effective date of termination upon termination of any Order.
6.3 Survival. Upon the expiration or termination of this Agreement, the parties’ respective rights and obligations in the following provisions shall survive: 3.0 (“Ownership; Truthlab Platform; Customer Data; Statistical Information”); 4.0 (“Fees; Taxes and Currency; Invoices”) (but only with respect to undisputed amounts due and owing that accrued before the termination or expiration of this Agreement and Section 4.2 “Taxes and Currency”); 5.0 (“Confidential Information”) (but only for a period of five (5) years after any termination or expiration of this Agreement; notwithstanding the foregoing, any obligations as to PII shall survive indefinitely); 6.3 (“Survival”); 7.3 (“Warranty Disclaimer”); 8.0 (“Limitation of Liability and Waiver of Consequential Damages”); 9.0 (“Indemnification”); and 10.0 (“General Provisions”).
7.1 General Warranty. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
7.2 Platform Warranty. Truthlab warrants the Platform, under normal use, will (i) perform materially in accordance with the applicable documentation provided by Truthlab; and (ii) be provided in a manner consistent with generally accepted industry standards.
7.3 Warranty Remedies. Customer will notify Truthlab of any warranty deficiencies under Section 7.2 within 30 days of the performance of the relevant Platform services, and Customer’s exclusive remedy will be the re-performance of the deficient Platform services. If Truthlab cannot re-perform such deficient Platform services as warranted, Customer will be entitled to terminate the deficient Platform services under Section 6.2 above and recover a pro-rata portion of the fees paid to Truthlab for such deficient Platform services, and such refund will be Truthlab’s entire liability.
7.3 Warranties Disclaimer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, TRUTHLAB EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE PLATFORM, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TRUTHLAB PROVIDES THE SERVICES AND DELIVERABLES FOR INFORMATIONAL PURPOSES TO CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.
IN NO EVENT WILL TRUTHLAB BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT TRUTHLAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRUTHLAB’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS PAID OR PAYABLE BY CUSTOMER TO TRUTHLAB FOR THE USE OF THE PLATFORM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES.
9.1 Customer Indemnification Obligations. Customer agrees to indemnify, defend and hold Truthlab harmless against any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Tester as a result of the collection, use, transfer, or other processing of Testers’ PII when uploaded on Platform by Customer or requested by Customer in connection with any Customer Studies.
9.2 Procedure. As a condition to the indemnifying Party’s obligations under this Section 9, the Party seeking indemnification must (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. THIS SECTION STATES THE INDEMNIFIED PARTY’S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY’S TOTAL LIABILITY, REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION 9
10.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent except in the event of a merger, acquisition or sale of substantially all of an assigning party’s assets. Any attempt to assign this Agreement other than as permitted above will be null and void.
10.2 Registration. To obtain access to the Platform, Customer may be required to obtain an account with Truthlab by completing a registration form and designating a user ID and password. When registering with Truthlab Customer 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. By registering with Truthlab, Customer agrees that Truthlab may send Customer communications or data regarding the Platform, including but not limited to promotional information and materials regarding Truthlab’s products and services, via electronic mail.
10.3 Notices. Notice shall be deemed given upon receipt via e-mail, personal delivery, delivery by a nationally recognized overnight delivery service (e.g., FedEx), or postage prepaid by certified or registered mail, return receipt requested. Notices to Truthlab will be sent to: Legal, Truthlab, Inc., 15 N Ellsworth Avenue, Suite 205, San Mateo, CA 94401. Unless noted otherwise by Customer, notices to Customer will be sent to the address appearing on the applicable Order form.
10.4 Governing Law. The Agreement shall be governed by and construed under the laws of the State of California without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties hereby submit to the exclusive jurisdiction and venue in the United States District Court for the District of Northern California or in the state courts with competent jurisdiction located in Santa Clara, California, and agree to have any action or proceeding between the parties or their successors, or upon, concerning, or related to this Agreement, any Order(s), the Terms and Conditions or any other agreement, transaction or dealing between the parties, heard by a judge of such courts. Accordingly, the parties waive their right to trial by jury in any such action or proceeding.
10.5 No Agency. The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
10.6 Waiver. No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.
10.7 Severability. If any provision of the Agreement 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.
10.8 Force Majeure. Truthlab 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.
10.9 Publicity. Customer agrees that Truthlab may use Customer’s company name and logo on Truthlab’s Customer lists on Truthlab’s Platform, website, and marketing materials and to promote Truthlab’s service in any way.
10.10 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Customer and Truthlab with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. Truthlab expressly objects to any additional or conflicting terms proposed by Customer in a Customer purchase order or otherwise. No Customer form shall modify the terms of this Agreement. This Agreement may only be modified or amended by a written amendment executed by both parties.
Questions, comments and requests in relation to this Agreement should be sent to firstname.lastname@example.org, or via regular mail to:
Truthlab Technologies, Inc. 15 N Ellsworth Avenue, Suite 205, San Mateo, CA 94401. Attn: Legal Department