Terms of Service – Clients

1. Access to the services

1. Client is responsible for making all arrangements necessary for you to have access to the Services, including and without limitation, providing suitable computer hardware and access to the Internet for reviewing test results and any authorization necessary for participants to access the Test Site for purposes of performing tests.
2. USERLYTICS™ shall have sole discretion in determining the appropriateness of any website or other online property or hosted software or software prototype or video files or other assets you request be included in any test.
3. As a client, you agree you will not use any robot, spider, other automatic device, or manual process to monitor or copy the pages of the Website or the Software or the Content (defined below) without the prior express written permission of USERLYTICS™;
   2. you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or the Software or the Services; and
   3. that the Test Site or online property or hosted software or software prototype does not contain any viruses or programs that may intentionally damage any system, data, or personal information.

If you choose to use the USERLYTICS™ Services, you agree to:

(1) Provide accurate and complete registration information including an email address that is current and active;

(2) Pay for the Services in accordance with the provisions of the Website or Agreement or contract or proposal; and (3) represent and warrant that the goals and activities that you define will not ask participants provided by USERLYTICS™ to do the following:

• Perform tasks that operate outside the realm of remote testing, including acts that indignify participants both on and off-screen while screen recordings, facial recordings, or any other testing method is being conducted.
• You agree that you will not require participants to use personal information such as: address, credit card number, social security number, email address, driver license number, in real or simulated tests unless you have previously coordinated with USERLYTICS™ the manner in which participant data, privacy and security will be protected, and have received written authorization from USERLYTICS™ to conduct such testing on each specific occasion.

USERLYTICS™ reserves the right in its absolute discretion on any ground it sees fit not to accept your order or to terminate an existing order, and is under no obligation to explain its decision. In such an event a full or partial refund will be made.

USERLYTICS™ may make changes to the content and Services offered on the Website or of the Software at any time.

USERLYTICS™ can change the terms of this Agreement at any time (including any Additional Terms). If USERLYTICS™ changes the terms of this Agreement, USERLYTICS™ will post an updated set of terms and conditions of use on this Website and USERLYTICS™ may send registered users an email notice of the changes.

If any modification is unacceptable to you, you shall cease using this Website and the Services and the Software. If you do not cease using this Website and the Services and the Software, you will be conclusively deemed to have accepted the change.

You hereby warrant that you are a corporation or other legal entity, validly formed and existing under the laws of your jurisdiction and have duly authorized your agent or agents to enter into this Agreement or, if an individual, you are of the age of majority in your place of residence.

2. Subscriptions and payment

If you purchase any of the Services, you shall pay all fees, including for any additional Services purchased by you, as well as any taxes applicable to any such Services, upon signature or other acceptance of the agreement/proposal and receipt of an invoice, unless otherwise specified during the purchase. All payments due to Userlytics shall be made in full, without any deductions, and shall be net of all applicable taxes.  The rates and charges specified are exclusive of any federal, state, local , or VAT taxes, which shall be added to the invoiced amounts as applicable at the time of invoicing. Fees are payable via wire transfer, debit or credit card. Debit and credit card payments may incur an additional processing fee to be borne by You. USERLYTICS™ may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then current term of your Services Subscription or Agreement Term.

Subscription and Annual Services are provided on a continuous service basis. In particular, these include, but are not limited to, all Enterprise, Premium, Advanced and Limitless plans. This means that, subject to the terms of this Agreement, USERLYTICS™ will automatically renew your Agreement or Subscription plan at the end of its term unless your request to cancel your Agreement or Subscription plan is received at any time prior to the end of the then-current Agreement term or Subscription plan. It is your responsibility to maintain a record of your scheduled renewal date and USERLYTICS™ is under no obligation to send you any renewal reminders.

You will be charged a renewal rate equal to the rate for the current Agreement or Subscription plan that you have chosen, unless USERLYTICS™ has notified you of any new rate in advance. Renewal fees are invoiced on the date the renewal takes effect, unless otherwise stated. A cancellation of an Annual Service Agreement or Subscription plan requested by you will become effective on the date that the then-current Agreement or Subscription plan period expires.

Custom (“Project-based”, “Ad-hoc” or “One-Off”) credits expire 6 months from the date of purchase. Enterprise credits expire 12 months from the date of the plan purchase or renewal, unless otherwise stated. Additional credits purchased as part of an Enterprise plan shall expire along with said plan.

Insufficiency of Account Credits. In the event that USERLYTICS must deduct credits from your client account, and USERLYTICS experiences an insufficiency of credits, USERLYTICS reserves the right to take the appropriate measures to mitigate the credit shortfall by, including but not limited to, invoicing you for the credits needed (including any possible minimum credit purchase amount applicable to your Plan) and delaying project completion. You may purchase more account credits by contacting your USERLYTICS Account Manager, the Engagement Team, or other representative.

You further agree to indemnify 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 attorneys’ fees on a full indemnity basis) arising out of or in connection with the insufficiency of your account credits.

If you have elected to pay the fees by credit card, you hereby warrant that the credit card information provided by you is correct, and you shall promptly notify USERLYTICS™ of any changes to such credit card information. You acknowledge and agree that if your credit card payment cannot be processed for any reason, USERLYTICS™ may suspend or cancel your Subscription or Custom Project.

In the event litigation becomes necessary to recover any invoices that were not paid in a timely manner, the losing side will pay all fees associated with the lawsuit, including all lawyer fees and retainers, and court costs. In addition, a late payment charge of 20% will be applied, on an annual basis, for any amounts, or the highest amount permissible under applicable law, from the time when payment was due through to the date the payment is made.

3. Registration

If you have registered for an account to use the Services, you hereby warrant that the information provided by you for the purposes of such registration is complete and accurate. You shall ensure that such information is kept up to date. Upon registering for an account, you will receive a password and an account designation. You acknowledge and agree that you, and not USERLYTICS™, are responsible for your account and all activities occurring in connection with the use of that account, whether or not you authorize such activities.

4. Content

You acknowledge and agree that:

• All activities/goals, survey questions, information, data, text, software, music, sound, photographs, images, video, survey responses, messages or other materials communicated or transmitted using the Website or the Services or the Software (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated.
• You, and not USERLYTICS™, are responsible for all Content that you upload, post, email, distribute, communicate, transmit, or otherwise make available using the Services or that is otherwise made available through the use of your account, whether or not authorized by you.

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.

All Content uploaded, posted, emailed, distributed, communicated, transmitted, or otherwise made available by You to the Website, Services and/or the Software, which includes but is not limited to test sites, test files, digital assets, or experiences, are the sole and exclusive property of You. Nothing in this Agreement shall be deemed to assign or transfer to USERLYTICS™ any rights to any such intellectual property. Any intellectual property or content that originates from or is developed by You shall remain the exclusive property of You.

Notwithstanding the foregoing, Userlytics shall own all rights, title, and interest in and to any data, content, or material that has been aggregated, anonymized, or de-identified such that it does not identify You, any individual, or any proprietary test assets, including all outputs derived through machine learning or artificial intelligence training or processing.

USERLYTICS™ will purge Content 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 Content. Purging timelines, based on USERLYTICS™ account types are listed here:

• For Enterprise, Premium, Advanced, and Limitless clients, if you decide not to renew your account with USERLYTICS, data will be purged from the USERLYTICS databases 365 days from the date of your last login, or earlier upon request by you. Backups will be purged 45 days after the 365-day period or upon receipt of the specific data deletion request, as mentioned above.
• For Basic clients, data will be purged from the USERLYTICS databases 365 days from purchasing the most recent set of Basic credits, or earlier upon request by you. USERLYTICS may disable your account and your access to use the Website and/or the Services and USERLYTICS may recover from you any losses, damages, costs or expenses incurred by USERLYTICS resulting from or arising out of your non-compliance with any provision of this Agreement. Backups will be purged 45 days from the date data has been purged.
• For any other type of Plan or Agreement, data will be purged from the USERLYTICS databases at latest 365 days from the date of non-renewal or termination of the Agreement or finalization of the project, or earlier upon request by you. Backups will be purged 45 days from the date data has been purged.

5. Service Improvement Authorization

1. Userlytics may access and process your Client Data and Client Content for the following purposes, and Client hereby instructs Userlytics to process its Client Data and Client Content for such purposes:
   1. To train and improve machine learning and AI models used, that support features or services to which Client may have access;
   2. To improve the functionality, accuracy and performance of services and features that may be accessible to Client;
   3. To support the development of new features or services that may be made available to Client, including through general platform releases or feature upgrades;
   4. As otherwise permitted in the Agreement.

For the purposes of this clause, Client Data includes all study materials, test scripts, test results, video/audio recordings, transcripts, user interactions, survey responses, and metadata submitted to or generated through use of the Services.

2. Client retains ownership of its Client Data and Client Content. Userlytics retains all rights, title, and interest in and to the Services, its proprietary models (including LLMs or LLM trained services), tools, and any insights, analytics, or outputs derived from the processing of aggregated or anonymized data. Userlytics may use such aggregated or anonymized data across its client base to improve its systems and services.

“Client Data” means all data submitted to or generated through Client’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 or anonymized data.

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

6. Your content

In connection with your use of the Website and the Services, and without limiting any of your other obligations under this Agreement or applicable law, you:

• Shall comply with: (i) this Agreement and all other policies as published on the Website from time to time, (ii) 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, where applicable, and all other laws related to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property or child protective email address registries, (iii) all other rules or regulations applicable to you, including regulations promulgated by the U.S. Securities and Exchange Commission and similar regulatory authorities throughout the world, and the rules of any securities exchange, and (iv) all privacy policies or similar policies or procedures to which you may be bound that are related to your use of the Services;
• Shall not upload, post, email, test, distribute, communicate, transmit or otherwise make available any Content: (i) 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, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that you do not have the right to make available or test by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any similar form of solicitation;
• Shall not materially and intentionally misuse the Website or the Services, including usage that adversely affects the speed, responsiveness, or functionality of the Website, or disrupts the availability of the Website and the Services for other users;
• Shall not use the Website or the Services to send tests, surveys, polls, or other materials to minors unless you are permitted to do so under all applicable laws, or to harm minors in any way, and shall not send surveys, tests, polls, or other materials to minors without first consulting with USERLYTICS™ to ensure all applicable legal protections and privacy laws are complied with;
• Shall not impersonate any other person or entity, including USERLYTICS™, or a USERLYTICS™ official, forum leader, guide, or host, or falsely state or otherwise misrepresent User’s affiliation with any other person or entity;
• Shall not interfere with or disrupt the Website or the Software or the Services or servers or networks connected to the Website or the Software or the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website or the Software or the Services;
• Shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Website or the Software or the Services in any manner;
• Shall not upload, post, email, test distribute, communicate, transmit or otherwise make available any viruses or similar malicious software that may damage the operation of a computer, the Website, or the Services;
• Shall not upload test links to message boards or newsgroups that are not relevant to the subject matter of the survey, or that prohibit such uploading without USERLYTICS™’s prior written consent;
• Shall not use the Website or the Services to collect, process, or otherwise handle, “Protected Health Information” (as defined in 45 C.F.R. § 160.103) or any other sensitive information according to privacy laws (such as GDPR or CCPA) without USERLYTICS™’s prior written consent; and
• Shall not make the video recordings or other data of participants supplied by USERLYTICS™ for Tests you ran using the USERLYTICS™ system publicly available, or send elements of these studies to third parties for them to make any data publicly available, and shall only use said video recordings and other data for market research, marketing conversion, usability and user experience testing and optimization, and related purposes, and shall not publish or make publicly available or allow 3rd parties to make publicly available said recordings and/or data, without the express written consent of USERLYTICS™.

You further acknowledge and agree that USERLYTICS™ may cooperate with any governmental authority in connection with any investigation into your use of the Website or the Software or the Services, including use in contravention of applicable laws, and may disclose any Content, and any other information pertaining to you or to your use of the Website or the Software or the Services, to such governmental authority in connection with any such investigation.

Data Ownership and Authorized Access Ownership of Data. All Data transmitted to USERLYTICS™ pursuant to the Services Agreement is and will continue to be your property. USERLYTICS™ further acknowledges and agrees that all copies of such data transmitted to USERLYTICS™, including any modifications or additions or any portion thereof from any source, will not remain in USERLYTICS™’ control once the relationship between you and USERLYTICS™ concludes and after you have requested its deletion, or after 365 days, whichever occurs sooner, except for any data that has been aggregated, anonymized, or de-identified such that it no longer identifies you or any individual, and/or any outputs or improvements derived therefrom, which shall be the property of USERLYTICS™. The Parties agree that as between them, all rights, including all intellectual property rights in and to deliverables data created on behalf of or for your benefit shall remain your exclusive property. Notwithstanding the foregoing, USERLYTICS™ retains ownership of any aggregated, anonymized, or de-identified data derived from the Services, and of any models, analytics, or machine learning outputs resulting from the processing of data.

Compliance with Data Privacy Laws. USERLYTICS™ represents and warrants that the organization is in compliance with Data Privacy laws, both of the United States and Europe and other countries where USERLYTICS™ operates. To ensure compliance with relevant Privacy Laws, the Company has in place and takes appropriate steps reasonably designed to ensure compliance in all material respects with policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). To the best of the Company’s knowledge, the Company has at all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that it: (i) has not received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is not currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is not a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.

Compliance with USERLYTICS™ Privacy Policies. By accessing and using our website or our services, you agree to comply with our privacy policies, which govern the collection, use, processing, and protection of your data, including video recordings and personally identifiable information. For any questions or concerns about your data, please contact our Data Protection Officer at dpo@userlytics.com.

For more information on our privacy policies and how we comply with CCPA and GDPR requirements, please see:
Clients Privacy Policy
Cookie Policy
AI Oriented Privacy Policy
Data Privacy Framework Statement
CCPA Addendum

7. Indemnity by user

You 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 attorneys’ fees on a full indemnity basis) arising out of or in connection with:

• Your use of the Website or the Software or the Services, including your use of or reliance on any information or materials (including test, survey or poll results or responses) obtained through the use of the Website or the Software or the Services,
• any other use of the Services by a third party using your account (whether or not authorized by you)
• Your breach of this Agreement, including any representations and warranties under this Agreement,
• Your contravention of any applicable law, including the CAN-SPAM Act of 2003, the CCPA, and the GDPR.

8. Indemnity by USERLYTICS™

USERLYTICS™ shall indemnify, defend and hold harmless You, your affiliates, and your respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including attorneys’ fees on a full indemnity basis) arising out of or in connection with:

• Our breach of this Agreement, including any representations and warranties under this Agreement,
• Our contravention of any applicable law, including the CAN-SPAM Act of 2003, the CCPA and the GDPR.

9. Confidentiality and Non-Solicitation

You acknowledge that the market research participants and user experience and usability participants (“Participants”) that USERLYTICS provides to you as part of the Services are not representatives, employees or contractors of USERLYTICS, and are not under its control, and are accessing any website or URL or mobile app or application or prototype you may direct them to, as part of the study or project you want them to undertake, remotely, in environments that USERLYTICS does not control and cannot supervise.

USERLYTICS™ may have confidentiality provisions in place between said Participants, as part of the Agreement they may sign when they register with USERLYTICS™ for the purpose of being invited to participate in market research projects and usability and user experience tests, and USERLYTICS™ shall collaborate with you in any action that might be advisable in relation to any noncompliance with said Agreement, but USERLYTICS™ does not undertake any responsibility for the actions or omissions of said Participants and will be held fully harmless in relation to any acts or omissions by them.

You may produce a separate agreement, unrelated to USERLYTICS™, between you and said Participants, to limit disclosure and hold Participants liable for a breach. You have the option to use your own Participants (i.e., market research participants or usability test participants) or be provided access to Participants who have signed up to receive test invitations from USERLYTICS™.

Non-Solicitation Clause. The parties recognize that they may possess confidential information about the other party’s employees, such as information relating to their education, experience, skills, abilities, compensation and benefits, relationships with customers, among others. The parties acknowledge and understand that the information about each other’s employees is not generally known, and is of substantial value in developing their business and in securing and retaining customers.
The Parties agree that, during the business relationship and for a period of twelve (12) months following the termination of Agreement and/or business relationship, neither party will not actively solicit any employee of the other Party’s Business or any of its subsidiaries or affiliates (a “Current Employee”), without the prior written consent of the other party. This shall not be construed as preventing either Party from hiring an existing or former employee who responds to a general hiring advertisement of the Party and is not proactively solicited by such Party.

10. Termination

This Agreement shall automatically become effective upon your first use of the Website or the Software or the Services, and continue indefinitely until it is terminated.

Upon the execution of this agreement, Userlytics begins allocating time and resources towards delivering the client’s services. Consequently, we do not permit terminations for convenience or without cause. Clients may only terminate where Userlytics has committed a material and uncurable breach of the Agreement. In such an event, clients may terminate the Agreement  and receive a pro rata refund of prepaid fees. This right can be exercised by providing written notice detailing the nature and uncurability of the breach. The refund will be calculated based on the unused portion of the services from the date of termination to the end of the current term. The determination of whether a breach is material and uncurable is made subject to the Agreement’s dispute resolution mechanisms. Termination under this clause results in cessation of services.

USERLYTICS™ may cancel your Subscription or Services Agreement and terminate this Agreement immediately by notice to you in the event that you breach any of your representations, warranties, or obligations under this Agreement (including any of your obligations under (Content) or if you contravene any applicable law or regulation.

Upon termination of this Agreement for any reason, you shall immediately cease all use of the Website and the Software and the Services, and you acknowledge and agree that USERLYTICS™ may, in its sole discretion, take any measures USERLYTICS™ reasonably deems necessary or desirable to prevent further use by you of the Website or Software or Services, including by blocking your IP address. You further acknowledge and agree that upon termination of this Agreement, USERLYTICS™ shall not be obliged to retain any of your Content (including test, survey or poll results or responses). 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™.

The following shall survive termination of this Agreement for any reason:

• all of your representations, warranties and indemnities given under this Agreement;
• all disclaimers of warranties, and limitations and exclusions of liability; and
• the last sentence of (Content), and each of (Indemnity by User), (Termination), (Limitations and Exclusions of USERLYTICS™’s Liability) and (Intellectual Property Rights).

11. Provisions of the website, the software and the services

USERLYTICS™ reserves the right at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, the Services or any part thereof, or your access thereto, and to modify, suspend or delete the Website or any part thereof, with or without notice. You shall receive a pro-rata refund for any such permanent discontinuation that is not related to a breach by You.

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 or Software or any modification, suspension or deletion of the Website.

You acknowledge and agree that the Website and the Software and the Services are provided “as is,” “where is,” “as available,” and “with all faults,” and that USERLYTICS™ has no responsibility or liability for the loss or deletion of, or failure to receive, process or store any Content (including test, survey or poll results or responses) maintained or transmitted using the Services.

When using participants sourced from USERLYTICS™, USERLYTICS™ offers a ‘best effort’ approach to recruitment, allowing you to recruit a variety of participant profiles throughout the duration of your Agreement. As a guide, moderated and unmoderated studies with a target criteria (demographic filters, customized screener questions, etc) that implies an incidence rate of 5% or greater of the population can expect to receive results within 1 business day, where the target countries are any of the US, UK, Canada, Australia, Germany, France, Italy, Spain, India, Mexico, Brazil and South Africa. For studies targeting groups with lower incidence rates or in countries not listed above, the recruitment process might take longer; the process may also be accelerated and/or made possible through the involvement of USERLYTICS™’s specialized recruitment team, which offers its services at an additional charge payable in Panel Credits. In these scenarios, you have the choice to either agree to these extra costs, using more Panel Credits to complete the project, or to modify the targeted participant criteria so as to raise the incidence rate.

You acknowledge and agree that the information, software, products and services contained in or available through the website or the software or the services, including information, software, products and services made available by other users of the website or the software or the services, may include inaccuracies or errors.

You further acknowledge and agree that you, and not Userlytics™, are responsible for evaluating the accuracy, reliability, completeness, and usefulness of any information obtained through the use of the website or the software or the services.

USERLYTICS™ makes no representations or warranties regarding the suitability, reliability, availability, timeliness, quality, or lack of viruses or other harmful components of the website or the software or the services, or the accuracy of such information, software, products and services.

To the fullest extent permitted by applicable law, USERLYTICS™, its affiliates, and their respective directors, officers, employees, servants and agents hereby disclaim all warranties, express or implied, with regard to such information, software, products or services, including any warranty of non-infringement of third party rights, and the implied warranties of merchantability and fitness for purpose.

If you are located in a country embargoed by the United States, or are on the United States treasury department’s list of specially designated nationals, you are not permitted to purchase a subscription or any other services from USERLYTICS™.

Limitations and exclusions of USERLYTICS™ liability

In no event shall Userlytics™, its affiliates, or their respective directors, officers, employees, servants or agents be liable for any direct, indirect, punitive, incidental, special or consequential damages whatsoever, including damages for lost profits, loss of use or data, or costs of cover, arising out of or in any way connected with this agreement, whether based on contract, tort, strict liability or any other legal theory, even if Userlytics™ has been advised of the possibility of such damages, including damages arising out of:

• the use or performance of, the delay in providing, the failure to provide, or the inability to use, the website or the software or the services, or
• any information, software, products or services contained in or available through the website or the software or the services, including information, software, products and services made available by other users of the website or the services

You specifically agree that Userlytics™, its affiliates, and their respective directors, officers, employees, servants and agents shall not be liable for:

• unauthorized access to or alteration of any transmissions or data, any material or data sent or received or not sent or not received, or any transactions entered into through the website or the software or the services or in reliance upon any information obtained through the use of the website or the software or the services,
• any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of a third party’s rights, including intellectual property rights, or
• any content sent using, or included in, the website or the software or the services by any third party.

If you are dissatisfied with any portion of the website or the software or the services, your sole and exclusive remedy is to terminate this agreement and discontinue using the website and the software and the services.

In the event that, notwithstanding the foregoing exclusions of liability, Userlytics™, any of its affiliates, or any of their respective directors, officers, employees, servants or agents is liable to you for any amounts under this agreement under any theory of recovery, whether based on contract, tort, strict liability or otherwise, USERLYTICS™’s (or such affiliates’, director’s, officer’s, employee’s, servant’s or agent’s, as applicable) total liability in respect of such amounts shall not exceed the greater of:

• The amount of one hundred dollars ($100.00), and
• The amounts actually received by Userlytics™ from you under this agreement.

You acknowledge and agree that without the foregoing exclusions and limitations of liability, Userlytics™ would not be able to offer the website or the software or the services, and that such exclusions and limitations of liability shall apply, even if they would cause your remedies under this agreement to fail of their essential purpose.

Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages in certain circumstances, and so the foregoing limitation and exclusions may not apply to you to that extent.

Permissions

USERLYTICS™ may not extract portions (either partially or in full) of the tests that you commission and pay for and of the reports that we provide for your website(s) and online properties and hosted software and software prototypes, and post them on our Examples and Case Studies pages and/or communicate them to third parties for marketing purposes, UNLESS it has received your prior express written permission.

Intellectual property rights

The Website and the Software and the Services and all information and screens appearing on this Website, including documents, services, Website design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of USERLYTICS™ or its third party licensors.

Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any USERLYTICS™ Software or any copyrighted material is strictly prohibited without the express written consent of USERLYTICS™ and/or the copyright owner or licensee.

USERLYTICS™ reserves all rights in the Website and the Software and the Services that are not expressly granted. Nothing in this Agreement shall be deemed to assign or transfer to you any rights to any such intellectual property. You further acknowledge and agree that Content made available to you through the Services may be subject to the intellectual property rights of third parties.

You acknowledge that you have all rights necessary to authorize USERLYTICS™ to access and permit participants to access the Test Site or other target online properties or offline assets, or to upload to a USERLYTICS™ Server software or software prototypes – for purposes of performing the Services.

All rights not expressly granted in these Terms of Use are reserved.

General

Use of Logo – Client authorizes USERLYTICS™ to make reference to Client’s name and logo on their website, only as a statement of Client being a client of Userlytics; such consent may be withdrawn by Client at anytime with written notice to USERLYTICS™.

USERLYTICS™ may provide references, frames or hyperlinks to internet websites maintained by third parties. USERLYTICS™ does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. USERLYTICS™ is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.

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:
● posted on the Website,
● sent by email to the email address for you last recorded by USERLYTICS™, or
● 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.

Entire Agreement. This Agreement comprises the entire agreement between USERLYTICS™ and you relating to the Website and the Software and the Services.

Use of Terms. The use of the terms “includes” and “including”, and similar terms, shall be deemed not to limit what else might be included.

Governing Law and Arbitration Clause. All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of the Florida, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in Florida. The arbitrator(s) shall be selected by application of the Florida Arbitration Code, or by mutual agreement of the parties. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent the party from obtaining an injunction.

Non-Assignability. Neither may assign this Agreement without the other party’s prior written consent, which may be withheld at the other Party’s sole discretion.

Attorney Fees. In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable attorneys’ fees and costs.

Non-Waiver. The failure by USERLYTICS™ to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or of any other provision of this Agreement.

Severability. If any provision of this Agreement shall be determined to be invalid or unenforceable by a court, such provision shall be deemed severable and the remainder of this Agreement shall remain in full force and effect.