Pulse Labs Tester Agreement

This Agreement (the “Terms”) contains the exclusive terms and conditions between you and Pulse Labs, Inc., a Delaware corporation with offices at 370 South 300 East, Salt Lake City, UT, 84111, USA (“Pulse Labs”), and it governs your participation in user experience and usability studies (the “User Tests”). By indicating your acceptance in the “I Agree” field, you represent and warrant that you are 18 years of age or older and agree to abide by and to be bound by this Agreement. If you do not agree to all of the terms of this Agreement or if you are younger than 18 years old, you may not act as a Tester for Pulse Labs.

1.0 OVERVIEW

1.1 Platform and Usability Testing

Pulse Labs has developed a software platform and service (the “Platform”) that enables Pulse Labs clients to run User Tests and testers (“Testers”) to perform and record tests. The Platform, which includes Pulse Labs’ Audio and Video Recorder, User Tests, and website, matches Testers to clients who want an application, service or other element (the “Elements”) remotely analyzed via the Internet or User Tests inside and outside the home by Testers (“Usability Testing”). Together, the Platform, User Tests, Elements, and all related materials and information are referred to as “Proprietary Information.” You agree to the Tester obligations as fully set forth in the complete sections referenced below, each of which is a material condition precedent to your participation as a Tester:

  • You will use Proprietary Information only as permitted by this Agreement (see Use of and Limited License to Proprietary Information)
  • You will provide us accurate information (see Tester Information)
  • You will maintain certain equipment and accounts (see Tester Requirements)
  • You will not communicate directly with clients (see Client Communications)
  • You will maintain the confidence of all Proprietary Information you received during the course of your activities as a Tester (see Confidentiality and Security and Passwords)

1.2 Independent Contractor Status

You are acting as an independent contractor for Pulse Labs. Nothing in this Agreement will be construed to make you an agent, employee or legal representative of Pulse Labs. You will not be entitled to any benefits and you are solely responsible for your taxes.

1.3 Third-Party Beneficiary

Pulse Labs’ clients for whom you are conducting Usability Testing shall be considered third party beneficiaries of this Agreement to the extent that any act or omission by you causes any damage or liability to any such client, and such client shall have the right to enforce any provision of this Agreement.

2.0 OWNERSHIP AND PROPRIETARY RIGHTS

2.1 Proprietary Information

You acknowledge that in performing Usability Testing or otherwise performing your duties under this Agreement, you will be granted access to or may obtain, learn, or develop Proprietary Information, including but not limited to the Platform, Element(s), the existence of an Element, User Tests, text, software, scripts, code, designs, ideas, graphics, photos, sounds, music, videos, applications, interactive features, software, technology, know-how, algorithms, processes, testing procedures, structure, interfaces, specifications, documentation, inventions (whether patentable or not), patents, copyrights, trademarks, trade dress, service marks, and other intellectual property, as well as technical, business, product, marketing, and financial information, products, and data. You acknowledge and agree that Proprietary Information may be protected by applicable intellectual property and other laws.

2.2 Ownership of Proprietary Information

Pulse Labs shall solely own all right, title, and interest in and to all results of your Usability Testing, including all video and audio recordings you create, conclusions, suggestions, comments, and any related reports made by you or in connection with your Usability Testing under this Agreement (“Testing Results”). You hereby assign to Pulse Labs, for no additional consideration, any invention, work of authorship, mask work, idea, process, or know-how (whether patentable or not) that is conceived, learned, or reduced to practice in the course of performance under this Agreement and sole ownership of any related patent rights, copyrights (including moral rights, provided that non-assignable moral rights are waived), trade secret rights, mask work rights, and other rights. You agree to take any action reasonably requested by Pulse Labs, at Pulse Labs’ expense, to evidence, perfect, obtain, maintain, enforce, or defend such rights. Except as expressly provided in this Agreement, nothing provided in connection with Usability Testing shall be construed as conferring any license under any of Pulse Labs, its clients’, or any other party’s intellectual property rights, whether by estoppel, implication, waiver, or otherwise.

2.3 Use of and Limited License to Proprietary Information

Subject to the provisions of this Agreement, Pulse Labs grants to you a personal, nonsublicensable, nonexclusive license to use Proprietary Information solely to conduct Usability Testing on behalf of Pulse Labs and its clients, and in accordance with any documentation or instructions supplied by Pulse Labs. Any underlying software, information, or Elements obtained by you in connection with Usability Testing are deemed to be a part of Proprietary Information and are subject to all the disclaimers, limitations, and restrictions in this Agreement relating to Proprietary Information. You agree to use Proprietary Information only in the ordinary course of testing, and you will not reproduce or modify the Proprietary Information or any underlying ideas, technology, related software, or portion thereof. You agree that you will not rent, sell, lease, or otherwise transfer or allow access to Proprietary Information or any part thereof or use such Proprietary Information for the benefit of a third party. You agree that you will not reverse engineer, disassemble, decompile, translate, adapt, or disassemble any software related to Proprietary Information, or otherwise attempt to discover any such software source code or underlying Proprietary Information. You agree that you will not remove or export any Proprietary Information or any portion or direct product thereof from the United States or the country in which you have agreed to perform Usability Testing.

3.0 TESTER OBLIGATIONS

3.1 Confidentiality

Any Proprietary Information related to Usability Testing is extremely confidential. By consenting to this Agreement, you agree to protect and to hold confidential any Proprietary Information provided, used, or arising in connection with Usability Testing. You agree that you shall not use or disclose (except as expressly authorized by this Agreement) Proprietary Information, unless such Proprietary Information becomes part of the public domain. Pulse Labs clients are third-party beneficiaries to this Agreement, which means that they may enforce these confidentiality obligations against you directly. In some cases, Pulse Labs clients may also require that you sign a Non-Disclosure Agreement directly with them. Without limiting these obligations, you specifically agree to keep in absolute confidence and not to disclose or discuss with anyone, even family members:

  • any information about the Usability Testing that you provide
  • any information regarding any Elements which you are testing, have tested, or will test, including the fact that an Element exists
  • any information about any Pulse Labs client

3.2 Tester Information

When you register with Pulse Labs to become a Tester or fill out questionnaires related to specific Usability Testing projects, you will be asked to provide information about yourself, which may include:

  • personally identifiable information such as your name, email address or other contact information, and PayPal account information
  • demographic information such as age, gender, education, employment status and hobbies
  • other information that we may request to facilitate Usability Testing (collectively, “Tester Information”)

You represent that the Tester Information that you provide to Pulse Labs will be accurate and complete. You agree to promptly provide Pulse Labs with any applicable updates to the Tester Information. You agree that you will not allow anyone else to use your account and that you are liable for any actions through use of your account. You hereby give Pulse Labs permission to share your Tester Information as follows:

  • With the clients for whom you are a Tester or a candidate to be a Tester as necessary for those clients to receive the full benefit of Usability Testing.
  • With vendors and service providers retained in connection with the provision of Pulse Labs services.
  • To an acquirer or merged entity as a result of an acquisition by or merger by Pulse Labs with a third party.
  • As we believe in good faith to be appropriate: (i) under applicable law, including laws outside your country of residence; (ii) to comply with legal process; (iii) to respond to requests from public and government authorities; (iv) to enforce this Agreement; and (v) to protect the rights, privacy, safety, operations, or property of Pulse Labs, our clients, you, or others.

For more information on how your Tester Information may be used, please see the Privacy FAQs attached to this Agreement.

3.3 Tester Requirements

You are responsible for providing and having access to all of the following equipment needed to conduct Usability Testing:

  • A secure, high speed internet connection.
  • A personal, non-commercial device such as a computer, mobile phone, or tablet, that satisfies these requirements:
    • For computers: a personal, non-commercial laptop or desktop computer capable of running the Pulse Labs voice recorder.
    • For mobile phones or tablets: A mobile phone or tablet device capable of running the Pulse Labs voice recorder.
  • A fully operational USB or plug-in headset microphone for desktop testing.
  • A valid email address.
  • In some cases, a webcam if you want to participate in projects that specifically require video.
  • A valid PayPal account for payment processing.

3.4 Usability Test Recordings and Device Access

You agree that Pulse Labs may collect video or photographic recordings of your face and surroundings and audio recordings of your voice. Specifically, you agree that , in connection with Usability Testing, Pulse Labs may, without limitation:

  • Record your facial expressions through the use of a webcam or camera.
  • Record your voice to capture oral feedback.
  • Record your answers to a series of questions on various topics such as design, content, user-friendliness, as well as offer ratings and suggestions on these areas.
  • Record your written commentary and suggestions.
  • Record the entire Usability Testing session, including video or photographic recordings of your surroundings, and provide it to Pulse Labs’ client.
  • Record any other sights or sounds that arise during a Usability Test and are captured by your device camera or microphone.

In the event that any other person’s likeness, actions, or voice are recorded during a Usability Test, you represent and warrant that you will obtain and have obtained any and all necessary consents to share the Usability Testing recording with Pulse Labs and its clients. You agree that Pulse Labs may share any Usability Test recordings and their content with its clients.

3.5 Device Information

You agree that, in addition to collecting device recordings of Usability Testing, Pulse Labs may collect other information about the device(s) you use for Usability Testing, including but not limited to device identifiers, IP address, location information, usage information, operating system, service provider, software or app content. In order to collect this information, Pulse Labs may serve cookies or related technologies to your device. For more information, please see the Privacy FAQs, which are expressly incorporated into this Agreement by reference

3.6 Anonymous Information

Pulse Labs may extract anonymous statistics and otherwise aggregate or de-identify information from User Tests and written reports you create and use such information for any purpose. Pulse Labs may post on its Site audio and video content that you provide while performing Usability Testing services, provided that Pulse Labs will not post your full name or other personally identifiable information. Pulse Labs will take reasonable precautions to limit use of such information to viewing only. However, you acknowledge that third parties may develop means by which they can circumvent such precautions and download such audio and video content. In such case, Pulse Labs shall not be liable for such third party downloading.

3.7 Other Sensitive Information

Some Pulse Labs clients may want to test Elements that require you to share additional personally identifiable information or sensitive information in order to properly perform Usability Testing. For such User Tests, Pulse Labs or the client will seek your explicit consent before collecting or sharing such information.

3.8 Client Communications

Testers and clients may only communicate with each other through the Platform. Unless you were hired directly by Pulse Labs’ client ( “Private Tester”), you may not provide any client with your personal contact information in order to allow a client to contact you directly, and you may not contact a client in any manner even if requested by the client. Other than communication relating to your separate business with a client, any communication between you and a Pulse Labs client outside of the Platform without Pulse Labs’ permission is a material breach of this Agreement, and Pulse Labs may withhold payment for any Usability Testing services you may have provided. You hereby give Pulse Labs permission to review communications made between you and any Pulse Labs client on the Platform to enforce this provision.

3.9 Purchase or Sale of Client Securities

You agree not to purchase or sell stock in any of the Pulse Labs clients for whom you’ve performed Usability Testing. You may be privy to material, non-public information that would make it illegal for you to purchase or sell stock in such clients.

3.10 Access to Testing and Other Information

Unless Pulse Labs agrees in writing:

  • You may not copy or record any Proprietary Information, including the results of your Usability Testing.
  • You may not copy or take screenshots/videos of the Elements, and/or disclose such Proprietary Information to other Testers or third parties in any manner.
  • If a Usability Test requires you to download an Element onto your device, you will promptly delete such Element after completion of the Usability Test.
  • If a Usability Test provides you with access to a password-protected website or non-public website, you will not access such website after completion of that Usability Test.

3.11 Security and Passwords

You understand that Pulse Labs takes steps to ensure that your Tester Information is treated securely, but no Internet transmission or method of electronic storage is 100% secure or error free. You acknowledge and agree that Pulse Labs cannot guarantee the security of any information provided by you and that you provide information at your own risk. You are responsible for maintaining the confidentiality of any usernames or passwords associated with any account that you use for Usability Testing and for monitoring all activity under your account. You may not disclose or share your username or password with any third parties or use them for any unauthorized purpose. You will be responsible for all activities, acts, or omissions that occur under your account, and you agree to assume full responsibility for any such activities, acts, or omissions. If you become aware of any unauthorized use of your password or your account, you agree to notify Pulse Labs immediately at the email address provided at the end of this Agreement.

3.12 In-Vehicle Usability Testing

By agreeing to participate in any in-vehicle Usability Testing, you represent, warrant, and agree to the following: (A) you have all necessary and appropriate licenses, approvals, and authority to operate a motor vehicle and are authorized and medically fit to do so; (B) you own, or have the legal right to operate, any motor vehicle that you operate when participating in Usability Testing; (C) such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and regulatory requirements for a vehicle of its kind; and (D) any and all applicable safety recalls on such vehicle have been remedied per manufacturer instructions. Without limiting the foregoing or any of your representations, warranties, or obligations in Section 5.2 below, you agree that you will not engage in reckless behavior, drive unsafely, drive while under the influence of alcohol or other behavior altering substances, operate a vehicle that is unsafe to drive, permit an unauthorized third party to accompany you in the vehicle, or otherwise take any action while driving that harms or risks harm to others. If anyone accompanies you in the vehicle while you are participating in Usability Testing, you hereby expressly acknowledge your representations, warranties, and obligations in Section 3.4 above. If, in connection with in-vehicle Usability Testing, you are provided with Loaned Equipment (as defined in Section 3.13 below), you will not set up any such Loaned Equipment while the vehicle is moving, you will mount Loaned Equipment in the vehicle in a manner that ensures that you can operate the vehicle safely (including, at a minimum, comply with any and all traffic safety laws, including those intended to prevent distracted driving), and you will not respond to any feedback that you may receive upon completing all or a portion of any Usability Testing until the vehicle is no longer moving. Further, you represent and warrant that, during any period in which you are agreeing, or have agreed, to participate in in-vehicle Usability Testing, you have, and will maintain in good standing, a valid policy of automobile liability insurance, in coverage amounts consistent with all applicable legal requirements, that covers you, your passengers, your vehicle, and other persons, vehicles, and property.

3.13 Usability Testing Using Loaned Equipment

By agreeing to participate in any Usability Testing in connection with which you have been, or will be, supplied with kits, systems, equipment, or devices (collectively, “Loaned Equipment”), you represent, warrant, and agree to the following: (A) you will use Loaned Equipment (including accessing the features and functions offered by Loaned Equipment, such as software applications) solely to participate in Usability Testing and will not make Loaned Equipment available for use by any other party; (B) you will use and maintain Loaned Equipment as directed by us and in accordance with the manufacturer’s instructions; (C) you will return Loaned Equipment to us upon our request and in the manner in which we direct; (D) you will be solely responsible for the replacement cost of any Loaned Equipment that is lost or damaged beyond repair after its delivery to you at the location you specify and prior to its return to us; and (E) you will be responsible for the repair costs for any Loaned Equipment that is damaged after its delivery to you at the location you specify and prior to its return to us (excluding normal wear and tear). For the avoidance of doubt, Loaned Equipment is lent to you, not sold. As between you and Pulse Labs, Pulse Labs retains ownership of all Loaned Equipment, in whole and in part. Pulse Labs may offset its cost of replacing and/or repairing Loaned Equipment that is lost, stolen, damaged, or not returned by you as directed by Pulse Labs, including your failure to return Loaned Equipment within the time frame specified by Pulse Labs, by withholding payments (see Section 4.2 below). Unless otherwise specified by Pulse Labs, Loaned Equipment must be returned within one week after the completion of the applicable Usability Testing.

4.0 Pulse Labs OBLIGATIONS

4.1 Payments

Unless you are a Private Tester, Pulse Labs will pay you the agreed-upon fees through PayPal within 7 days after completion of the applicable Usability Test. Any payment transactions will be encrypted using SSL technology. You acknowledge and agree to the following requirements and additional information.

  • All payments will be made in the currency of your country.
  • Applicable PayPal fees for certain transactions may be deducted by PayPal from your total payment. Please contact PayPal for more information.
  • As a Tester, you are an independent contractor and responsible for determining any tax liabilities incurred from payments received from Pulse Labs.
  • As a Tester with U.S. tax obligations, you may be required to provide Pulse Labs with W-9 information.

If you are a Private Tester, then you shall be paid directly by the Pulse Labs client who hired you, and you acknowledge and agree that Pulse Labs has no obligation to pay you for your services.

4.2 Right to Deny Payment

Pulse Labs reserves the right in its sole discretion to deny payment to any Tester for good cause, which may include the following reasons:

  • Incorrect and/or misleading profile information
  • Poor set-up for purposes of conducting the User Tests (e.g., background noise, no audio, poor sound quality, blocked webcam)
  • Duplicate accounts
  • Substandard or incomplete testing as determined by Pulse Labs and/or its clients at their sole discretion (for example, failure to complete all required tasks, or not speaking thoughts aloud during tests)
  • User Tests that are not performed in compliance with all client requirements
  • If you contact a client outside of the Platform or allow a client to contact you outside of the Platform without Pulse Labs’s written permission, other than for a legitimate, independent commercial relationship
  • User Tests not completed and submitted prior to the expiration of the applicable testing period or conducted after the expiration of the applicable testing period, in each case, as set by Pulse Labs and/or its clients
  • Failure to promptly return Loaned Equipment in good condition and as directed by Pulse Labs

4.3 Termination

Pulse Labs reserves the right to immediately terminate this Agreement, your account, and/or access to any Proprietary Information, under certain circumstances and without prior notice. Upon termination, the rights and licenses granted to you by this Agreement shall terminate and you must immediately return anything you have obtained in connection with Usability Testing, together with any and all documents, notes, and other materials related to Usability Testing, including, without limitation, all Proprietary Information and all copies and extracts thereof and all Loaned Equipment. All other terms of this Agreement will otherwise remain in effect. Cause for such termination includes but is not limited to:

  • Real or suspected breaches or violations of this Agreement, other incorporated agreements, Usability Testing instructions, and/or additional terms.
  • Requests by law enforcement or other government agencies.
  • A request by you (self-initiated account deletion).
  • Discontinuance or material modification to the Pulse Labs services or any portion thereof.
  • Unexpected technical or security issues or problems.
  • Extended periods of inactivity.

Termination of this Agreement or your account may include removal of access to all Usability Testing resources or Proprietary Information, deletion of information associated with or inside your account, and barring of further participation in Usability Testing. Further, you agree that all terminations for cause will be made in Pulse Labs’ sole discretion and that Pulse Labs is not liable to you or any third party for any termination of this Agreement or your account.

5.0 OTHER TERMS AND CONDITIONS

5.1 International Testers

We control and operate the Usability Testing services from our offices within the United States of America. We do not make any representation that any Proprietary Information related to Usability Testing or other content from Pulse Labs or Pulse Labs clients are appropriate or available for use in other locations, and access to them from territories where such content or use of such Proprietary Information or participation in Usability Testing is illegal is prohibited. If you enroll as a Tester from locations outside of the United States, you do so on your own initiative and at your own risk and are responsible for compliance with applicable local laws.

5.2 Assignment of Certain Rights and General Release

As provided in Section 2.2 above, you agree to assign and hereby assign any and all rights in and to Testing Results for no additional consideration. In exchange for good and valuable consideration in the form of payments made by Pulse Labs to you as provided in Section 4.1 of this Agreement, in addition to other good and valid consideration, the receipt and sufficiency of which you hereby acknowledge, you grant to Pulse Labs, its subsidiaries and affiliates, its clients, and each of their respective legal representatives, agents, directors, officers, and employees and all third party beneficiaries to this Agreement (specifically including, but not limited to, the Pulse Labs client(s) for whom you perform Usability Testing), and each of their respective heirs, successors and assigns (collectively, the “Released Parties”), the unrestricted permission to copyright, exhibit, distribute, publicly perform and display, broadcast, publish, and otherwise use and exploit pictures, videos or digital audio recordings of you and surrounding sights and sounds obtained in connection with Usability Testing and all digital information pertaining to such, in still, single, multiple, moving or video format, or in which you may be included in whole or in part, or composite, or distorted in form, or in reproductions thereof, in color or otherwise, in any and all media, whether now existing or hereafter invented for advertising, marketing, promotion or any other lawful purpose. You waive any rights, claims or interest you may have to control the use of your persona, image, likeness and sound obtained in connection with Usability Testing in whatever media used for the above-referenced purposes and irrevocably release, discharge and hold harmless the Released Parties from any and all claims, demands, suits, causes of action, damages, costs, losses, expenses and proceedings of any kind whatsoever, whether existing now or arising in the future, anywhere in the universe, that relate in any way whatsoever to the activities contemplated in this Section 5.2 and/or the Released Parties’ exercise of the rights granted herein. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT APPLICABLE TO THE SUBJECT MATTER OF THIS AGREEMENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

5.3 Other Rights

All rights not expressly granted by Pulse Labs in this Agreement are reserved.

5.4 Participating at Your Own Risk and General Release

YOUR PARTICIPATION IN THE USABILITY TESTING IS ENTIRELY VOLUNTARY, AND YOU DO SO STRICTLY AT YOUR OWN RISK. The Released Parties are not liable for any damages, costs, losses, or expenses suffered or incurred by you or any third parties who claim to have suffered or incurred damages, costs, losses, or expenses as a result of your acts or omissions, even if such damages, costs, losses, or expenses, in either of the cases described above, arise from or are related to your participation in Usability Testing, including, without limitation, any damages, costs, losses, or expenses associated with or arising from personal injury or death and regardless of the theory of liability. IN PARTICULAR, YOU HEREBY ACKNOWLEDGE THE RISKS ASSOCIATED WITH PARTICIPATING IN USABILITY TESTING OF ELEMENTS THAT COMPRISE IN-VEHICLE EXPERIENCES; HEREBY AGREE THAT YOUR PARTICIPATION IN SUCH USABILITY TESTING IS ENTIRELY VOLUNTARY; REPRESENT THAT YOU WILL PARTICIPATE IN SUCH USABILITY TESTING ONLY WHEN IT IS SAFE TO DO SO; REPRESENT THAT, IN PARTICIPATING IN SUCH USABILITY TESTING, YOU WILL COMPLY WITH ALL APPLICABLE TRAFFIC SAFETY LAWS, MANUFACTURER’S INSTRUCTIONS, AND VEHICLE SAFETY RECOMMENDATIONS; AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE FOR ANY OF THE DAMAGES, COSTS, LOSSES, OR EXPENSES THAT MIGHT RESULT FROM ACTS OR OMISSIONS OF YOU OR OTHERS DURING YOUR PARTICIPATION IN SUCH USABILITY TESTING, ESPECIALLY IF YOU CHOOSE TO DO SO UNDER CONDITIONS THAT ARE UNSAFE FOR YOU, YOUR PASSENGERS, OTHER DRIVERS, BICYCLISTS, PEDESTRIANS, OR OTHERS USING THE STREETS, ROADS, HIGHWAYS, AND INTERSTATES OR OTHERWISE DO SO IN VIOLATION OF APPLICABLE TRAFFIC SAFETY LAWS, MANUFACTURER’S INSTRUCTIONS, OR VEHICLE SAFETY RECOMMENDATIONS. Further, you hereby waive any rights, claims, or interest you may have arising from any of the activities or circumstances contemplated in this Section 5.4 and hold harmless the Released Parties from any and all claims, demands, suits, causes of action, damages, costs, losses, expenses, and proceedings of any kind whatsoever, whether existing now or arising in the future, anywhere in the universe, that relate in any way whatsoever to the activities and circumstances contemplated in this Section 5.4. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT APPLICABLE TO THE SUBJECT MATTER OF THIS AGREEMENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, recited in Section 5.2 above.

5.5 No Endorsement

NO ENDORSEMENT OF OR PARTICIPATION BY ANY THIRD PARTY SHOULD BE INFERRED DUE TO ANY REFERENCE TO THAT THIRD PARTY OR INCLUSION OF DATA RELATING TO THAT THIRD PARTY IN CONNECTION WITH A USABILITY TEST.

5.6 WARRANTY DISCLAIMER

The parties acknowledge and agree that the Elements and Usability Testing are experimental in nature and that any and all Proprietary Information, including the Platform, Elements, and any other software, content, or Loaned Equipment provided by Pulse Labs, a client, or a third party in connection with Usability Testing, is provided “AS IS” and may not be functional on any machine or in any environment. You acknowledge that Loaned Equipment is designed, manufactured, tested, and sold by third parties, not the Released Parties, and that none of the Released Parties are in the business of designing, manufacturing, testing, or selling Loaned Equipment. As such, none of the Released Parties make any representation or warranty to you of any kind concerning Loaned Equipment. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE FOR THE PLATFORM, USABILITY TESTING, ELEMENTS, LOANED EQUIPMENT, AND ANY OTHER INTERACTION THAT YOU MAY HAVE WITH THE RELEASED PARTIES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM OR USABILITY TESTING IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. ANY LOANED EQUIPMENT MADE AVAILABLE TO YOU TO ASSIST YOU IN CONDUCTING USABILITY TESTING IS USED BY YOU AT YOUR OWN DISCRETION AND RISK, AND YOU WILL ASSERT ANY CLAIM, OR CLAIMS, THAT MAY ARISE FROM OR RELATE TO USE OF LOANED EQUIPMENT BY YOU OR ANY RELATED PARTY, SUCH AS WARRANTY AND/OR PRODUCT LIABILITY CLAIMS, SOLELY AGAINST THE DESIGNERS, MANUFACTURERS, TESTERS, AND SELLERS OF THE SAME.

5.7 LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, OR OTHER THEORY (A) FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, OR (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST REVENUES, LOST PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RELEASED PARTIES’ AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE LESSER OF ONE THOUSAND DOLLARS ($1000) OR THE AMOUNT PAID OR PAYABLE TO YOU FOR PROVISION OF THE USABILITY TESTING SERVICES.
YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

5.8 INDEMNIFICATION

You agree to defend, indemnify, and hold harmless the Released Parties, their suppliers and licensors, and each of their respective legal representatives, officers, directors, employees, agents, heirs, successors, and assigns from and against any third-party claim, demand, liability , loss, damage, cost or expense (including without limitation reasonable legal and accounting fees) arising out of or related to: (A) your participation in Usability Testing; (B) your use of any Proprietary Information or Loaned Equipment provided or obtained in connection with Usability Testing; (C) your failure to comply with this Agreement, including, without limitation, your disclosure of any Proprietary Information that is provided to you; (D) your infringement, violation, or misappropriation of any third party rights; or (E) your negligence, gross negligence, intentional misconduct, or violation of any applicable laws or regulations. The Released Parties shall promptly provide notice to you of any such claim, demand, liability, loss, damage, cost or expense.

5.9 BASIS OF BARGAIN

EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS, GENERAL RELEASES, AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

5.10 Acknowledgement and Acceptance of Use of Personally Identifiable Information for Tester’s residing in the EEA and other Regions

By agreeing to these terms you acknowledge and agree that we may use, store and process personally identifiable information (or “Personal Data”) which you provide to Pulse Labs, including (i) full name, (ii) email, (iii) physical address, (iv) phone number, and other related information that may be collected as part of a User Test or for the purpose of Pulse Labs Services to Pulse Labs’ customers (the “Agreed Purpose”). You also agree that, as a data controller of your, the data subject’s, Personal Data, we may process and transfer personally identifiable Information to our data centers in strategic locations (including, but not limited to, the United States, Singapore and Ireland) to support Pulse Labs’ customers in those regions and in other jurisdictions outside of the European Economic Area (“EEA”), which may have different data protection standards to those protected in the EEA, in connection with the Agreed Purpose, in order to enhance the responsiveness of the Service we provide and allowed for improved access and uptime to Pulse Labs’ customers. Save in connection with the provision of services to you or as required in order to comply with applicable law, Personal Data which you provide to us will be kept confidential and will not be disclosed to anyone outside of Pulse Labs or Pulse Labs’ customers. You will have a right of access under data protection legislation to your personally identifiable information that we hold about you.

6.0 GENERAL TERMS

6.1 Entire Agreement

This Agreement constitutes the entire agreement between you and Pulse Labs relating to the subject matter of this Agreement, and shall completely replace any prior agreements, oral or written, between you and Pulse Labs in relation to you acting as a Tester for Pulse Labs.

6.2 Changes to Usability Testing

Pulse Labs reserves the right to discontinue Usability Testing services at any time or otherwise make changes to its services at any time, without notice, and without liability to you.

6.3 Option to Exercise or Enforce

Pulse Labs’ failure to exercise or enforce any legal right or remedy or provision of this Agreement (or which Pulse Labs has the benefit of under any applicable law) will not constitute a waiver of such right, remedy, or provision.

6.4 Severability

In the event that any of the provisions of this Agreement is found by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the other provisions of this Agreement remain in full force and effect.

6.5 Nonassignability

You may not assign or delegate any rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void and without effect. Pulse Labs may freely assign or delegate all rights and obligations under this Agreement, in whole or in part.

6.6 Equitable Relief

You acknowledge and agree that due to the unique nature of the Proprietary Information, there may be no adequate remedy at law for any breach of your obligations in this Agreement, that any such breach may allow you or third parties to unfairly compete with Pulse Labs or its clients, resulting in irreparable harm to such parties. As such, upon any such breach or threat thereof, Pulse Labs or an applicable client shall be entitled to injunctions and other appropriate equitable relief without posting a bond in addition to whatever remedies it may have at law.

6.7 Controlling Law, Arbitration, Class Waiver, and Waiver of Jury Trial

This Agreement and the relationship between you and Pulse Labs shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions. You agree to first contact Pulse Labs at support@pulselabs.ai regarding any claim or controversy arising out of or relating to this Agreement or your participation in Usability Testing. You and Pulse Labs agree to submit to the personal and exclusive arbitration of any disputes relating to this Agreement or your participation in Usability Testing under the rules of the JAMS ADR. For more information visit https://www.jamsadr.com. Any such arbitration, to the extent necessary, shall be conducted in Wilmington, Delaware. You covenant not to seek any remedy from Pulse Labs in any other forum.
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AS TO ANY CLAIM, DISPUTE OR CONTROVERSY THAT YOU MAY HAVE AGAINST PULSE LABS. YOU AGREE TO THE ENTRY OF INJUNCTIVE RELIEF TO STOP SUCH A LAWSUIT OR TO REMOVE IT AS A PARTICIPANT IN THE SUIT. YOU AGREE TO PAY THE ATTORNEY’S FEES AND COURT COSTS THAT PULSE LABS INCURS IN SEEKING SUCH RELIEF. THIS PROVISION, PREVENTING YOU FROM BRINGING, JOINING OR PARTICIPATING IN CLASS ACTION LAWSUITS, IS AN INDEPENDENT AGREEMENT AND DOES NOT CONSTITUTE A WAIVER OF ANY OF YOUR RIGHTS AND REMEDIES TO PURSUE A CLAIM INDIVIDUALLY AND NOT AS A CLASS ACTION IN BINDING ARBITRATION AS PROVIDED BELOW.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to this Agreement or your participation in Usability Testing:

  • YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY
  • YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
  • YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.

6.8 Communications

You agree that Pulse Labs may communicate with you electronically or telephonically regarding this Agreement, Usability Testing, security, privacy, and administrative issues. If Pulse Labs learns of a security system’s breach, it may attempt to notify you electronically by posting a notice on the Site, sending an email to you, or contacting you via any other means of communication for which you have provided contact information. You may have a legal right to receive a notice of breach in writing. To receive free written notice of a security breach or to withdraw your consent from receiving electronic notice, please contact us via the contact information provided at the end of this Agreement.

7.0 QUESTIONS AND COMMENTS

Questions, comments and requests in relation to this Agreement should be sent to support@pulselabs.ai, or via regular mail to:

Pulse Labs AI, Inc.
370 South 300 East
Salt Lake City, Utah, 84111
USA

Last updated: February 17, 2022