These Customer Terms & Conditions (“Terms”) form a legal contract between you and Apptourage, Inc. (“Apptourage”) that governs your access and use of Apptourage’s software and Services. 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 Apptourage that you have the authority to bind the organization to these 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 Apptourage 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.
Apptourage has developed a software platform (“Site”) that enables customers to run usability tests (“User Tests”) and allows testers selected in accordance with customer direction (“Testing Contractors”) to perform User Tests for the customers. The Testing Contractors are neither employees nor agents of Apptourage, but are independent service providers using the Site to provide services to you by participating in User Tests. Apptourage disclaims liability for the acts or omissions by anyone who is not an employee of Apptourage.
Apptourage shall provide you a limited right to access and use the Site for the purposes of initiating and reviewing User Tests. In addition, Apptourage may perform professional services related to such User Tests (“Services”) in material compliance with your online orders (“Order(s)”). Orders shall include any signed statements of work. Collectively, results 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 period specified in the Order (the “Order Term”). Unless otherwise specified, the Order Term for all Orders initiated through the Site is one (1) year. Upon completion of each User Test you initiate and review, Apptourage 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.
Apptourage will store, and make available in each customer account, data collected from User Tests for a period of one (1) year from the Order completion date, after which, User Test data may be removed from the respective customer account.
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 customer’s usage of the Site or Services exceeds the baseline parameters set forth in the applicable Order. When Apptourage invoices a customer for fees pursuant to an Order, customer shall pay to Apptourage the full, undisputed amount of each Order within fifteen (15) days of receipt of the invoice (“Payment Period”). In the event that customer disputes an invoice, customer must notify Apptourage 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 Apptourage to terminate customer’s access to the Site or Services without refund of any fees paid. Apptourage will not provide any refunds if customer does not initiate all of customer’s designated User Tests before the end of the applicable Order Term. To initiate additional User Tests, customer must complete a new Order.
Amounts payable to Apptourage under this Agreement are payable in full to Apptourage 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 Apptourage harmless from all such taxes and customs duties.
“Apptourage Property” means any pre-existing intellectual property rights of Apptourage that are utilized by Apptourage in performance of its obligations under these Terms such as computer software, reports or methodologies. Apptourage Property also includes any elements of Services, subject to your rights in your Confidential Information that are of general applicability to Apptourage’s business and provisions of services to other clients. Apptourage Property will be the sole property of Apptourage and, even if incorporated into a Deliverable, will not be deemed to be a Deliverable. Apptourage Property shall be deemed to be Apptourage’s Confidential Information. Apptourage hereby grants you an irrevocable, perpetual, worldwide, non-exclusive license to use the Apptourage Property solely as incorporated in the Deliverables for your internal business purposes.
No Confidential Information obtained by Apptourage from you shall become Apptourage’s property. All materials provided by you under any Orders shall be deemed “Customer Property” for purposes of the Agreement. During the performance of Apptourage’s obligations under these Terms, and subject to Apptourage’s compliance with the terms of these Terms, you grant to Apptourage a temporary, non-exclusive license to your Customer Property solely as needed to perform Apptourage’s obligations in connection with these Terms; For avoidance of confusion, this license granted by you to Apptourage for this purpose will expire upon the earlier of: (i) the time at which such license is no longer required by Apptourage for the performance of its obligations to you, or (ii) termination of these Terms or the applicable Order. You also grant to Apptourage an irrevocable, perpetual, worldwide, non-exclusive license to use the results made available to you by Apptourage as part of your User Tests for the purpose of promoting the Apptourage site and for the provision of services to other Apptourage customers; provided that, Apptourage 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 Apptourage under these Terms.
Apptourage agrees that to the extent that a Deliverable is subject to copyright: (a) every aspect thereof, other than Apptourage 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 (с) 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, Apptourage 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 Apptourage Property. Apptourage agrees that it will reasonably assist you in every appropriate way and at your cost with respect to your proprietary rights in the Deliverables.
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, (с) 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 event 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 monetary 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.
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.
Subject to the terms and conditions herein, you hereby acknowledge and agree that Apptourage may compile aggregate results from all of, or a selection of, your use of the Site, provided that Apptourage shall not disclose any information that would individually identify you. Such aggregate results shall be deemed to be Apptourage’s Confidential Information. You also hereby agree that Apptourage may 1) use User Test results made for you to help promote the Apptourage site and to provide services to other Apptourage customers; provided that, in such instance, Apptourage 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 Apptourage’s provision of Services, and to improve Apptourage’s service offerings.
All Testing Contractors agree to terms that include confidentiality provisions. See Tester Terms & Conditions 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 Apptourage 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.
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.
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 Apptourage 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 Apptourage to wind up the Services under the terminated Order; and (b) Apptourage will deliver to you all completed Deliverables and work in process.
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.
The Services provided by Apptourage, 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 Apptourage’s sole obligation shall be Apptourage re-performing the Services. Apptourage hereby represents and warrants that (a) Apptourage has full power and authority to enter in the Agreement and these Terms will constitute a valid and binding obligation of Apptourage; and (b) Apptourage’s execution of these Terms does not violate any other agreement to which Apptourage is subject.
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.
OTHER THAN AS SET FORTH HEREIN, APPTOURAGE 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. APPTOURAGE PROVIDES THE SERVICES AND DELIVERABLES SOLELY FOR INFORMATIONAL PURPOSES TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON SUCH INFORMATION.
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. APPTOURAGE’S AGGREGATE LIABILITY FOR DIRECT DAMAGES TO YOU UNDER THESE TERMS SHALL BE LIMITED TO THE CONSIDERATION PAID OR PAYABLE BY YOU TO APPTOURAGE FOR THE USE OF SITE OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPTOURAGE 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.
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 event shall the required written consent be unreasonably withheld. Any attempt to assign these Terms other than as permitted above will be null and void.
To obtain access to the Site or Services, you may be required to obtain an account with Apptourage by completing a registration form and designating a user ID and password. When registering with Apptourage 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.
By registering with Apptourage, you understand that Apptourage 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 (с) promotional information and materials regarding Apptourage’s products and services, via electronic mail. Apptourage may send you, in electronic form, information about the Service, additional information, and information the law requires Apptourage to provide. Apptourage 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.
These Terms will be governed by and construed in accordance with the laws of the State of California 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 San Francisco County. Each party agrees to submit to the jurisdiction of San Francisco County and agrees that venue is proper in, said courts.
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 Apptourage and, as such, Apptourage does not control Testing Contractors.
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.
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.
Apptourage 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.
You hereby agree that Apptourage may use your company’s name and logo on Apptourage’s client lists both on Apptourage’s website and on marketing presentations.
You may not solicit or hire any Testing Contractor to perform usability testing directly for you outside of the Site for a period of one (1) year from the completion of any User Test conducted the Site 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 Apptourage account. Any individual whom you invite to complete a free private usability test (“Private Test”) through the Site will not be considered to be a Testing Contractor for the purpose of this section 8.10 of these Terms.
These Terms together with any Orders constitute the complete and exclusive agreement between you and Apptourage 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 firstname.lastname@example.org, or via regular mail to:
550 Bryant Street
San Francisco, CA 94107