Userpeek's Terms and Conditions for Customers

Thank you for considering our products and services (“Service”). The Service is provided by Gravitech (“Userpeek”, “we”, “us” or “our”), contact address: GraviTech (“UserPeek”), 167 Madison Avenue, Ste 205 #174, New York City, NY 10016. By using our Service, you are agreeing to these terms.

Please carefully review these Terms & Conditions.

These Terms and Conditions, Orders (as defined below) referencing these Terms and Conditions, and our Data Processing Agreement ("DPA") create a legal agreement ("Agreement") between you, on behalf of yourself or your employer ("Customer"), and the Userpeek entity named on the Applicable Order that governs access to and use of the Userpeek platform. We may periodically amend these Terms & Conditions. If we make significant modifications to our terms and conditions, we will notify consumers through email.

Customer must not utilize the platform if they do not agree to be bound by this agreement.

Aspects of the Userpeek System

Userpeek has built a software platform (the "Platform") that enables its clients to create test plans, designate audiences, and execute tests ("Tests'') in order to gather feedback from individuals on any brand, design, content, or service (the "Purpose"). Each individual who participates in a Test (a "Tester") must first agree to Userpeek's Tester Terms and Conditions, which include clauses requiring them to maintain the confidentiality of each Test they take.

Customer may recruit its own Testers to complete the Test on the Platform, if authorized by an applicable Order, or Customer may request Userpeek to recruit Testers on its behalf. Customer may additionally acquire services from Userpeek pursuant to a separate agreement (the "Services") to help Customer in creating Tests, hiring Testers, or receiving other assistance connected to Customer's usage of the Platform.

Each Test that a Tester completes is recorded (a "Recording") and made accessible to the Customer on the Platform. As used in this Agreement, "Recordings" include any Recording-derived products and material.

DISCLAIMER

Testers are non-employees and non-agents of Userpeek; they are independent users of the Platform who wish to participate in Tests. NONE OF USERPEEK, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS ENDORSE ANY TESTER, TEST OR RECORDING (INCLUDING, WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED BY ANY TESTER). USERPEEK EXPRESSLY DISCLAIMS ALL LIABILITY FOR THE ACTS OR OMISSIONS OF TESTERS, AND FOR THE CONTENT AND ACCURACY OF THE TESTS, SESSIONS OR RECORDINGS. CUSTOMER'S USE OF, OR RELIANCE, ON RECORDINGS IS AT ITS OWN RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.

1.0 ACCESS TO THE PLATFORM

1.1 Userpeek Orders

Userpeek shall give access to the Platform and related Services, as outlined on the appropriate order form ("Order"). If Customer subscribes online as opposed to signing a paper order form, the conditions and limits of access otherwise specified in an Order will be those outlined on Userpeek's website.

Each Order will specify, to the extent applicable: (i) the Userpeek products, services, and support; (ii) the length of time Customer will have access to the Platform (the "Subscription Term"); (iii) the applicable fees and payment terms; (iv) Third Party Products (as defined below) to be provided by Userpeek to Customer, if any; and (v) any additional options, restrictions, or terms and conditions.

At the conclusion of the Subscription Term, all unused Tests or Services will expire.

All unused Products and Services purchased under the "Pay As You Go" plan expire 180 days after their purchase.

1.2 Reseller Orders

If Customer obtains access to the Platform through a Userpeek-authorized reseller and no Order or other written agreement is executed directly between Customer and Userpeek, then Customer's access to the Platform is governed by this Agreement, and in the event of a conflict between this Agreement and terms between Customer and such authorized reseller, this Agreement will control. Userpeek is not liable for the acts, omissions, representations, or offerings of a reseller.

1.3 Registration for an Account

Customer must register for an account prior to gaining access to the Platform. Customer must submit and maintain true, accurate, current, and full information and registration data when enrolling with Userpeek. Userpeek may send notifications to the registered account regarding its goods and services.

2.0 USE OF PLATFORM

2.1. License

Userpeek gives to Customer, subject to this Agreement and the related Order, a non-exclusive, non-transferable, restricted license to access and use the Platform during the Subscription Term only for the Purpose and Customer's internal business usage.

2.2 Customer Accountability

2.2.1 No Reverse Engineering

Customer shall not (and shall not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Platform; (ii) modify or create derivative works based on the Platform; or (iii) introduce into the Platform any virus, worm, "back door," Trojan horse, or other similar malicious code.

2.2.2 Seat Utilization: Customer Obligations

Unless specifically specified in an Order, each Seat must be allocated to an identified employee or agent of Customer (each, a "User") and may not be shared by several individuals. Customer may reassign a Seat to another employee or agent in the event that a User is terminated from its company or otherwise transferred to a new job or department.

2.2.3 Platform Employance

Customer will (a) be responsible for Users' compliance with this Agreement and Orders, (b) be responsible for the accuracy, quality and legality of Customer Property, the means by which Customer acquired Customer Property, and Customer's use of Customer Property, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Platform and promptly notify Userpeek of any such unauthorized access or use, and (d) use the Platform only in accordance with this AUP. Customer acknowledges and accepts that Userpeek may monitor all Platform usage for security, operational, performance, and enhancement purposes.

Customer may not engage in any of the following restricted activities:

a.) provide access to or use of the Platform, or make it available to anyone other than as permitted in this Agreement or an Order;

b.) use the Platform for anyone other than Customer's benefit, or sell, resell, license, sublicense, distribute, make accessible, rent, or lease the Platform as part of a service bureau or outsourcing offering;

c.) breach any law (including third-party privacy rights), regulation, or the Content Policy in connection with Customer's (i) use of the Platform or product, or (ii) gathering of information (including Tests and Recordings);

d.) interfere with or impair the Platform's or any connected data or information's integrity or performance;

e.) duplicate or frame the Platform or any portion, feature, function or user interface connected with the Platform, with the exception of framing on Customer's own intranets or for Customer's own internal business reasons;

f.) contact with Userpeek-supplied Testers outside of the Platform, unless as otherwise permitted by this Agreement, an Order, or with evidence of the Tester's express agreement to be delivered to Userpeek upon request;

g.) force Tester to agree any conditions that may in any way change Userpeek's rights or Customer's obligations or duties under this Agreement;

h.) use or utilize the Platform or Testers accessible via the Platform to develop or benchmark a product or service that competes with Userpeek;

3.0 PRICING & PAYMENT TERMS

3.1 Fees and Payment Conditions

In consideration of its access to and use of the Platform, Customer shall pay the amounts ("Fees") specified in each Order. Except as expressly stipulated in this Agreement, all Orders are non-cancellable and Fees are non-refundable.

If Customer's usage of the Platform exceeds the licenses and parameters specified in the related Order, Customer will be liable for Userpeek's excess usage costs. Additional use costs (if applicable) can be discovered on Userpeek's website or in the Order.

Customer shall pay Userpeek’s merchant of record (3.1.1) the entire amount of any Fees invoiced by Userpeek’s merchant of record in accordance with the payment conditions outlined in the Order. If Customer disputes an invoice, Customer shall inform Userpeek’s merchant of record immediately and pay the undisputed portion of the charge.

3.1.1 Merchant of record

Userpeek products and services are sold by our merchant of record Bright Market, LLC d/b/a FastSpring, a U.S. limited liability company with offices at 801 Garden St. #201, Santa Barbara, CA 93101, United States of America, by Bright Market LLC dba FastSpring Limited, a U.K. private limited company with offices at 2 Minton Place, Victoria Road, Bicester, England, OX26 6QB, by FastSpring B.V., a Netherlands private limited company with offices at De Cuserstraat 91, 1081 CN Amsterdam, Netherlands, or by other FastSpring subsidiaries. Fastspring Inc. is the merchant of record responsible for managing all payments, transactions, refunds, VAT and tax collection according to the buyer's country laws. Customer is responsible to cancel the subscription to the selected plan. Customer will receive from Fastspring a link to manage the subscription at the email address used for the order. If Customer does not cancel, the subscription will be automatically renewed by the reseller until cancellation. All support regarding payments, taxes, refunds, subscription management is provided by Fastspring.

3.2 Taxes

Amounts payable to Userpeek under this Agreement are payable in full to Userpeek’s merchant of record 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, or other subdivision of government) that may be applicable. Customer shall pay, indemnify, and keep harmless Userpeek’s merchant of record for all applicable taxes and customs charges. Userpeek’s merchant of record retains the right to bill for sales tax if necessary by the appropriate taxing jurisdiction, unless Customer furnishes an exemption certificate or self-assessment documentation.

4.0 INTELLECTUAL PROPERTY

4.1 Userpeek Property

Userpeek Property signifies

the System and Services;

any and all Userpeek products and services;

any pre-existing intellectual property and associated rights of Userpeek utilized in the fulfillment of its responsibilities under an Order;

Analyses (as described in the section below titled "License to Userpeek"); and

any changes, derivative works, or updated versions of the above.

Userpeek and/or its licensors retain exclusive ownership of all rights, titles, and interests in the Userpeek Property. Userpeek Property is the secret and proprietary property of Userpeek or third parties from which Userpeek has acquired the necessary rights. No right or license is given or inferred under any of Userpeek's or its licensors' patents, copyrights, trademarks, trade names, service marks, or other intellectual property rights beyond those set forth in the Agreement. In addition, subject to the limits outlined in Section 4.3, Userpeek transfers to Customer all rights, titles, and interests it possesses in the copyright of the Tests and Recordings.

4.2 Customer Property

The term "Customer Property" refers to: (a) all electronic data, information, and material uploaded or entered into the Platform by the Customer; (b) the Tests; and (c) the Recordings.

Customer Property shall continue to be the exclusive and exclusive property of Customer and/or its licensors. Customer Property is the secret and proprietary property of Customer or third parties from whom Customer has acquired the necessary rights. No right or license is given or inferred under any of the Customer's or its licensors' patents, copyrights, trademarks, trade names, service marks, or other intellectual property rights beyond the rights and restrictions outlined in the Agreement.

4.3 Permission to Use for Userpeek

4.3.1 Subject to Section 4.3.2, Customer hereby gives Userpeek a temporary, revocable, non-exclusive license to use Customer Property only for the term of the Agreement and solely for the purposes required for Userpeek to execute its duties under the Agreement.

4.3.2 Customer hereby provides to Userpeek, in addition to the license granted in Section 4.3.1, a perpetual, irrevocable, royalty-free, non-exclusive, global license to:

utilize and incorporate into the Platform or products any suggestion, enhancement request, recommendation, correction, or other feedback submitted by Customer concerning the Platform or Services;

Use, copy, and create derivative works of the Tests and Recordings for the Customer's benefit and the purposes of this Agreement; and

develop analyses utilizing data collected from Platform and Service use ("Analyses");

Customer Confidential Information will not be used in any derivative works or analyses, and material covered by this paragraph will not identify Customer or Customer Property and will only be aggregated and anonymized for use by Userpeek.

5.0 Confidential Information; Additional Test Terms

5.1 Confidentiality of Information

The following information ("Customer Confidential Information") is confidential between Customer and Userpeek: (i) Customer Property, (ii) Tests, and Recordings, and (iii) other non-public information on Customer's legal, financial, or business affairs.

Customer and Userpeek agree that the following information ("Userpeek Confidential Information") is Userpeek's Confidential Information: (i) Userpeek Property; and (ii) other non-public information regarding Userpeek's legal, financial, business affairs, technical features, functionality, product roadmap, or security measures.

Customer Confidential Information and Userpeek Confidential Information shall not include information that (a) is publicly known at the time of disclosure, (b) is received by a party to this Agreement ("Recipient") from a third party without restriction on disclosure and without breach of a non-disclosure obligation, or (c) is published or otherwise made public by the owner of the information ("Discloser"). In addition, the parties agree that while the terms of this Agreement are secret, the existence of the Agreement and the nature of their relationship are not.

The Recipient may only use the Confidential Information of the Disclosing Party for the purposes of performing the Agreement and in line with its provisions. The Recipient shall not reveal Confidential Information of the Disclosing Party to anyone other than its employees, contractors, advisers, and agents who are bound by confidentiality restrictions as stringent as those outlined in the Agreement.

Recipient will exercise at least the same level of care to safeguard Discloser's Confidential Information as it uses to protect its own Confidential Information of a comparable kind, but in no circumstance will it be less than a reasonable level of care.

Notwithstanding the foregoing, each party may disclose Confidential Information of the other party as required by a court of competent jurisdiction or other applicable governmental authority or as required by applicable law, provided that such party uses reasonable efforts to notify the other party in advance of such disclosure so that the other party may request confidential treatment or a protective order prior to such disclosure.

Each party understands that violation of this provision may cause irreparable injury to the other party, for which monetary damages would be inadequate, and that the other party may thus be entitled to seek injunctive action to enforce the requirements of this section.

5.2 Additional Conditions; Personal Information

The DPA of Userpeek regulates the parties' rights and duties with respect to "personal data" and "personal information" (as defined by relevant legislation) collected, utilized, transmitted, or otherwise processed in accordance with this Agreement. If necessary by relevant legislation, the parties shall collaborate to ensure that additional conditions are agreed upon to comply with such requirements.

Customer must comply with all relevant laws and may be required to sign a minor panelist addendum. Customer may collect "Personal Information" from kids as defined by the Children's Online Privacy Protection Act ("COPPA") for testing with minors in the United States, provided that Customer complies with COPPA and all other relevant laws.

Customer may only test Protected Health Information ("PHI"), as defined by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), after entering into a Business Associate Agreement with Userpeek. Customer undertakes not to violate HIPAA for any testing involving PHI and to seek extra permission as outlined in Section 2.2.3.

Physical product testing is permissible so long as the Customer complies with the provisions of this Agreement and any extra requirements required by Userpeek. Customer acknowledges and accepts that Userpeek is not liable for any claims arising from or relating to Customer's requested physical product testing. Physical product testing will require Tester's approval and may necessitate a completely completed Physical Product Testing Addendum prior to physical product distribution. Userpeek maintains the right, in its sole discretion, to decline to permit the testing of physical items.

Userpeek is not liable for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Customer as a result of any physical product testing initiated by Customer, for any breach of privacy laws (including, but not limited to, the GDPR, HIPAA, and COPPA), or any fines, penalties, or costs arising from the foregoing, to the extent caused by Customer's failure to comply with this Agreement or applicable law.

6.0 WARRANTY DISCLAIMERS

USERPEEK EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE PLATFORM, THE TESTS, OR THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SERVICES PROVIDED FREE OF CHARGE, IF ANY, ARE PROVIDED "AS IS," AND EXCLUSIVE.

7.0 LIMITATION OF LIABILITY; WAIVER OF CONSEQUENTIAL DAMAGES

NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, GOODWILL, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.0 INDEMNIFICATION

8.1 Obligations Regarding Userpeek Indemnification

Userpeek undertakes to indemnify and defend Customer against any claims, causes of action, damages, judgments, settlements, and/or expenses arising directly from a third party's allegation that the Platform infringes a valid U.S. patent or any copyright or trade secret of such third party. If any Userpeek product or the Platform becomes or, in Userpeek's opinion, is likely to become the subject of a claim or injunction prohibiting its use as contemplated herein, Userpeek may, at its option (i) obtain for Customer the right to continue using the product or Platform, or (ii) replace or modify the product or Platform so that it becomes non-infringing without materially compromising its principal functions. If I and (ii) are not reasonably available to Userpeek, then Userpeek may terminate this Agreement upon writing notice to Customer and return Customer's pre-paid fees for the then-current period, prorated for the balance of that time.

8.2 Obligations Relating to Customer Reimbursement

Customer agrees to indemnify and defend Userpeek against any third party claims, causes of action, damages, judgments, settlements, and/or costs arising directly from (i) any Customer Property or physical product testing initiated by Customer; and/or (ii) violation of any law, regulation, or the Content Policy in connection with Customer's use of either Userpeek Property or information collected, used, transferred, or otherwise processed in connection with Customer's use of either Userpeek Property or information collected

8.3 Exclusions

Userpeek shall have no liability or obligation hereunder with respect to any indemnification claim based on (a) use of the Platform or any product in an application, environment or with devices for which it was not designed or contemplated, (b) modifications, alterations, combinations or enhancements of the Platform or any product not created by or for Userpeek, or (c) Customer's continuing allegedly infringing activity after being notified thereof or its continued use of the Platform or any product.

8.4 Required Methodologies

Any claim for indemnification under this agreement requires (a) the party seeking indemnification to provide prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle, or compromise such claim, provided that I the indemnified party shall reserve the right to secure its own, separate counsel and participate in the defense at its own expense, and (ii) the indemnifying party shall have sole control and authority to

9.0 GENERAL PROVISIONS

9.1 Suspended Status; Termination

This Agreement shall start on the Effective Date and continue until terminated in accordance with its terms by either party. This Agreement shall end upon notice of termination on the earlier of (i) the date of termination of the final Order subject to this Agreement, or (ii) the date of termination of Customer's access to the Platform. Userpeek may, at its sole discretion, accept Orders under this Agreement.

Either party may terminate this Agreement for a substantial breach by the other party that has not been remedied. Userpeek may suspend Customer's access to the Platform or Service thirty (30) days following receipt of a breach notification if the breach is curable, or immediately if the breach is not curable or is for a violation of Section 2.2.1. Userpeek is not responsible for any loss or damage caused by the termination or suspension of Customer's access to the Platform or Services as a consequence of Customer's material breach of this Agreement. Customer's sole and exclusive recourse, if Userpeek violates this Agreement and fails to cure such breach within thirty (30) days of notification from Customer, is to terminate this Agreement and the corresponding Order and obtain a pro-rated refund of Fees prepaid under the respective Order.

9.2 Products from Third-Party Sources

Userpeek may offer non-Userpeek products or services ("Third Party Products"), or the Platform may permit access to Third Party Products, which may require the Customer's approval of third party agreements. By linking to or using Third Party Products, the Customer accepts these conditions. Userpeek is not a party to these third-party agreements and is not liable for Third Party Products or any data transmission between the Customer and a non-Userpeek supplier. Userpeek access to Third Party Products may be revoked at any time. Userpeek is not liable for claims based on Third Party Products or other non-Userpeek products.

9.3 Responsibility

This Agreement may not be assigned without the prior written approval of the other party, save in the event of a merger, acquisition, or sale of substantially all of the assigning party's assets. In the case of a merger, acquisition, or sale of substantially all of the assigning party's assets, the assigning party must provide notification of the assignment to the other party. Any effort to transfer this Agreement other than as expressly authorized herein is invalid.

9.4 Notifications

Notice is presumed given upon receipt by email to legal@userpeek.com. Notifications shall be sent to the address appearing on the applicable Order or an updated notification address supplied in writing (including by email to the address specified either above or on the Order) subsequent to an Order's entry into force.

9.5 Governing Statute

The Agreement shall be governed by and construed in accordance with the substantive laws of the UAE, except its provisions on conflicts of law. The parties consent to the exclusive jurisdiction and venue of the UAE Dubai Court. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods from applicability.

9.6 Advertisement

Neither party shall use the other's name in publicity efforts without the other's prior written agreement; however, Customer acknowledges that Userpeek may use Customer's name and logo in customer listings, calls with its investors, and marketing materials. Customer accepts that Userpeek may share Customer information for marketing and other commercial reasons with its subsidiaries and affiliates.

9.7 Export Compliance

The Platform and Services are subject to UAE and international export laws and regulations. Customer and Userpeek both affirm that they are not on any US, EU or UAE government denied-party list. Customer is responsible for determining if any submitted material, data, or information is subject to US, EU or UAE export controls. Customer will not (i) permit any User to access or use the Platform in a US/EU/UAE-embargoed or otherwise restricted (e.g., where an export license is required) country or region, or (ii) access or use the Platform or upload any content, data, or other information in violation of any US,EU or UAE export law or regulation. In connection with this Agreement, neither party has received or been offered any unlawful or inappropriate bribe, kickback, payment, gift, or object of value from an employee or agent of the other party. Gifts and entertainment given in the normal course of business do not breach the aforementioned prohibition.

9.8 Miscellaneous

Each party is a separate contractor. This Agreement shall not be interpreted as creating or implying a partnership, agency, or joint venture. A party's omission or delay in exercising any right, power, or remedy shall not be construed as a waiver of that right, power, or remedy unless specifically provided for in this Agreement. If any provision is deemed unlawful or unenforceable by a court of competent jurisdiction, the remaining sections will remain in full force and effect without being affected or voided. Due to unavoidable circumstances, neither party is accountable for failing to perform its non-monetary commitments. Each party will provide the other with a fair chance to comply prior to asserting that the other has not satisfied its responsibilities. Userpeek upholds corporate conduct and associated principles pertaining to conflicts of interest, market misuse, anti-bribery and corruption, and fraud. Userpeek and its workers adhere to these rules, and it requires its contractors to do the same.

9.9 Subsidiary Orders

The term "Subsidiary" refers to any business entity that owns more than fifty percent (50%) of the voting interest in a party or otherwise directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such party remains controlled by or under common control with Customer. A Subsidiary is permitted to place its own Order(s) pursuant to the conditions of this Agreement. By placing an Order, a Subsidiary agrees to be bound by the provisions of this Agreement as if it were a party to this Agreement from the beginning.

9.10 Entire Agreement

The Agreement comprises the whole and exclusive agreement between Customer and Userpeek with respect to the subject matter hereof and supersedes all earlier communications (both written and oral) with respect to such subject matter. Userpeek explicitly objects to any extra or contradictory conditions in any purchase order or other form submitted by the Customer. Each party affirms that it has entered into this Agreement lawfully and is able to do so.

Questions, feedback, and requests about this Agreement should be emailed to legal@userpeek.com.

GraviTech (“UserPeek”)
167 Madison Avenue
Ste 205 #174
New York City, NY 10016

Last updated on 18 October 2022