Terms of Use for uTest Community Members

I. uTest Terms of Use for "Express Profile" Members (Those Who Are Not Eligible To Receive Paid Projects)

Please carefully review the terms and conditions set forth below before using the uTest website (the "Site"). The terms "You", "Your", "User", "Users", or "Members" refer to anyone accessing our services or the Site for any reason. The terms "uTest", "We", "Us", or "Our" refer to Applause, Inc. Your use of the Site is conditioned upon your acceptance of, and compliance, with the terms, conditions, restrictions and notices contained herein. uTest may amend or modify these Terms of Use without notice at any time by updating this posting. Your continued use of the Site after any modifications to the Terms of Use constitutes your agreement to be bound by all such modifications.

Summary of Terms to Follow:

1. Users cannot harvest or collect any identifying information by any means for the purpose of sending unsolicited email or other communications

2. Users cannot create more than one account

3. Users cannot use another member's account at any time

4. Users cannot falsify info in their uTest profile, including name, location, devices or expertise

5. Users cannot reuse or repurpose any content on this site without the express written permission of uTest, or the original author in cases of guest contributor

6. Users cannot post or transmit any message that is libelous or defamatory

7. Users cannot… run unapproved testing, security hacks, DOS attacks or the like on uTest site or affiliated sites

8. uTest is not responsible for the content here and you cannot make any claims of any kind

9. uTest owns all content posted on our site and reserves the right to use this content within the normal course of operations for uTest/Applause (however, uTest will not sell, share, or trade this content with other test-related media properties)

10. uTest won't sell, rent or share users' private information with any third party, other than in the normal course of operations (eg: ticketing systems, email tool for monthly newsletters)

General Applicable Terms and Conditions

uTest offers a wide range of content, services, benefits, and other resources on the Site (collectively, the "Site Content"). You are hereby granted a non-exclusive, revocable, non-transferable, and non-assignable license to use and view the Site Content, subject to your continued compliance with these Terms of Use. Except as expressly permitted, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Site Content, or any portion of the Site Content, is strictly prohibited without the prior written permission of uTest. Some of the Site Content may relate to information regarding legal, financial, or technical matters. Any such content is solely for informational and general non-advisory purposes. Members should use their own efforts to confirm such information with a professional(s) in the pertinent field(s).

Links to Third-party Sites

The Site may contain links to third-party websites. We do not monitor or control the linked sites, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by uTest. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.

Limitations of Liability; Disclaimers of Warranties

By using the Site, each Member hereby agrees to fully indemnify uTest from and against any third-party claims relating to alleged infringement by such Member of a third party's intellectual property rights. uTest and its affiliates make no representations or warranties of any kind regarding the Site and the Site Content. The Site and Site Content are provided in "AS IS" condition, and uTest and its affiliates expressly disclaim any and all warranties, whether express or implied, including: all warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any and all warranties arising from course of dealing and usage of trade; that the site and the site content will meet your requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, as to the results that may be obtained from the operation, use or other exploitation of the site or the site content, and as to the accuracy or reliability of any information obtained from the site or the site content. No advice or information, whether oral or written, obtained by you from uTest, an affiliate of uTest or through the site or site content will create any warranty not expressly stated herein. You use the site and the site content at your own risk, and neither uTest nor any affiliate of uTest will be liable for any damages of any kind arising from or relating to any of their operation, use or other exploitation. Under no circumstances will you be entitled to recover from uTest or an affiliate of uTest any direct, incidental, consequential, indirect, punitive or special damages (including damages for loss of business, loss of profits or loss of use), whether based on contract, tort (including negligence), or otherwise arising from or relating to the site or site content, even if uTest or an affiliate of uTest has been informed or should have known of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of warranties or of liability, so some of the above limitations or exclusions may not apply to you.

Interactive Features

A number of locations on the Site offer opportunities for sharing information and ideas with other Users or Members (the "Interactive Features"). uTest does not edit or control the information or materials posted to or distributed through the Interactive Features by parties other than uTest itself (the "Interactive Content"), and will not be in any way responsible or liable for Interactive Content, or any loss or damage that any person may suffer as a result of using Interactive Features. All Members use the Interactive Features at their own risk. Members should exercise caution in interacting with unknown persons that they meet using the Interactive Features in the same way that they would exercise caution in the physical world. No user of any Interactive Feature shall:

(a) Use an Interactive Feature for any purpose in violation of local, state, Federal, foreign, or international laws;

(b) Impersonate any person or entity, or forge or manipulate headers to disguise the origin of any Interactive Content;

(c) Except as otherwise permitted by these Terms of Use, harvest or otherwise collect information about others, including email addresses, without their consent;

(d) Post any material more than once or "spam"; or

(e) Engage in any other conduct that restricts or inhibits any other person from using or enjoying any Interactive Feature, Interactive Content, or the Site, or which, in uTest's sole judgment , exposes uTest or any affiliate of uTest to any liability or detriment of any type.

Site Restrictions

No Member shall submit, upload to, distribute through or otherwise post to the Site (including any Interactive Feature) any material that:

(a) Is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;

(b) Contains any advertising, promotional, solicitation or other commercial material, including the uniform resource locator ("URL") of a Member's own website, unless the website in question relates directly to a project on the Site; notwithstanding the foregoing, Members may post the URL of a website containing a portfolio of sample works or the Member's résumé;

(c) Contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;

(d) Infringes any copyright, trademark or patent, incorporates any material that constitutes a trade secret of a third party, or violates any property rights, rights of privacy or publicity or any other rights of any third party;

(e) Contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others; or

(f) Contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment or to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

uTest reserves the right (but is not obligated) to do any or all of the following:

(a) Record Interactive Content;

(b) Investigate any allegation that Interactive Content or Registration Information does not conform to these Terms of Use;

(c) Remove Interactive Content that is abusive, illegal or disruptive, or that otherwise fails to conform with these Terms of Use;

(d) Monitor, edit or disclose any Interactive Content; or

(e) Edit or delete any Interactive Content, regardless of whether such content violates any of these Terms of Use. uTest and uTest's Affiliates have no liability or responsibility to users of the Site or any other person or entity for performance or nonperformance of the aforementioned activities.

Members may not:

(a) use any automated collection mechanism or any manual process to monitor or copy the web pages comprising the Site or the Site Content without the prior written permission of uTest;

(b) contract employers or freelancers through the Site or using Site Content for the purpose of encouraging them not to use the Site or any other services offered by uTest; or

(c) engage in personal attacks, negative or other unfair criticism or other forms of discourteous and unprofessional online conduct or practices.

Eligibility

uTest shall have absolute discretion as to whether or not it permits a particular Member to use or access the Site or any Site Content. The Site is available only to individuals and entities which can form legally binding contracts under applicable law. The Site and the Site Content are not available to persons that are minors under the laws of their jurisdiction of residence or persons who do not have the legal authority to enter into binding contracts. By registering to use the Site as a Company, you represent to uTest that you have the authority to agree to these Terms of Use. uTest reserves the right to terminate any Member's access to the Site without notice, at any time, for any or no reason. A Member found in violation of these Terms of Use, as determined by uTest in its sole discretion, shall forfeit any right to receive payment for or a refund of any amounts due from services rendered or paid for testing services. uTest reserves the right to pursue claims against Members for all damages (including but not limited to consequential damages, lost profits, indirect or punitive damages) arising from or relating to such Member's use of the Site or the Site Content to the fullest extent of the law.

Limitations on Communication between Users

You are prohibited from making direct contact or engaging in commercial transactions, with other Members or uTest and Applause Customers, whether through the Site or otherwise. Members agree not to post their email address, phone number, or any other method of contact outside of the Site or give any of the foregoing information to another User. Members also must not contact uTest or Applause Customers outside of the uTest Site and Platform.

Export Controls

Your use of uTest's services, your access to the Site Content, and your utilization of uTest's proprietary "Software as a Service" platform ("SaaS"), are subject to export controls administered by the United States (including, but not limited to, the controls administered by the U.S. Department of Commerce's Bureau of Industry and Security and the U.S. Department of Treasury's Office of Foreign Assets Control). You are responsible for compliance with all applicable export control laws and regulations. Diversion contrary to U.S. or other applicable law of any Site Content, the uTest SaaS, or any Company's software submitted for testing is prohibited. uTest services and its SaaS platform are currently prohibited for use in or export or re-export to Cuba, Iran, North Korea, Sudan, Syria, or to any country then subject to U.S. trade sanctions. By downloading or using any product from this site, or purchasing or providing any service, you are acknowledging that you have read and understood this notice and agree to comply with all applicable export control laws. This information is not intended to be a comprehensive summary of the export laws that govern the products and services.

Rights in Site Content

Unless otherwise indicated, the Site Content, including all images, illustrations, icons, designs and written and other materials that appear on the Site are copyrights, trademarks, trade dress or other intellectual property owned, controlled, or licensed by uTest or its affiliates or are the property of their respective owners and are protected by U.S. and international copyright laws and conventions. Accessing the uTest.com web site does not authorize Users to use any name, logo, trademark or service mark in any manner.

Permission is granted to display, download and print in hard copy format other resources of the Site solely for the purpose of using the Site as an internal or personal business resource. None of the resources may be copied, reproduced, distributed, republished, downloaded, displayed, posted electronically or mechanically, transmitted, recorded, in any manner mirrored, photocopied or reproduced without the prior written permission of uTest or the applicable owner.

Use of Cookies

A cookie is a piece of data stored on the user's computer tied to information about the user. Cookies are used to manage sessions on our site. We do not and will not use cookies to collect private information from any user which they did not intentionally submit to us.

Digital Millennium Copyright Act

uTest complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Website you may contact our Designated Agent at the following address:

Chris Malone, Applause, Inc. 100 Pennsylvania Ave., Suite 500, Framingham, MA 01701 United States of America Telephone: 508.480.9999 Email: info@utest.com

Any notice alleging that materials on this website infringe intellectual property rights must include the following information:

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;

(c) A description of the material that you claim is infringing and where it is located on the Website

(d) Your address, telephone number, and email address;

(e) A statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law; and

(f) A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Transfer of Information

We reserve the right to transfer your personal information in the event of a transfer of ownership of uTest or the acquisition of substantially all the assets of uTest related to the business which collected such information, such as acquisition by or merger with another company. In such an event, uTest will notify users who have provided email addresses when information about those users is transferred and becomes subject to a different privacy policy.

II. uTest Terms of Use for "Expanded Profile" Members (Those Who Are Eligible To Receive Paid Projects)

In addition to the above terms for "Express Profiled" members, the below terms apply for members of the community who are "Expanded Profiled", and thus, eligible to receive paid projects.

General Provisions

By registering as a Member, you confirm that you are at least 18 years of age. Additionally, you acknowledge and agree that you are an independent contractor and not an employee of uTest. As an independent contractor, you are not entitled to participate in any employee benefits provided from time to time by uTest to its employees. You are responsible for providing and maintaining all computer equipment and Internet connectivity necessary for the performance of your duties as a Member. uTest is not obligated to provide any training, technical or administrative support or other assistance in connection with your duties as a Member. uTest does not guarantee that you will be assigned to any minimum number of software testing projects/cycles. Likewise, you may, in your sole discretion, elect to accept or decline to participate in any software testing project to which uTest invites you. In the event that you accept a software testing project from uTest, you will be informed of the deadline for the completion of the project. You will be responsible for determining when and how to perform the necessary testing services in order to meet the specified deadline for the project.

You acknowledge that through your use of the Site you will have access to new and developing software and information about Companies for whom you are evaluating software. As such, you acknowledge that you have an absolute duty of confidentiality regarding any and all applications, software, releases or other products (collectively, "Applications") which you are testing, have tested, or will test, or any information you acquire, learn of, or otherwise have awareness of as a result of your use of the Site. This duty is owed to both uTest and any third-party suppliers of Applications or other Site Content; and such suppliers shall be entitled to enforce this promise as intended third party beneficiaries of these Terms of Use.

You warrant and represent that you shall not, under any circumstances, copy or attempt to copy by any means, reverse engineer or attempt to reverse engineer, take screen shots or video captures of, or otherwise store any Applications or other Site Content. You agree not to disclose any such Application, or Site Content to other Users or any third-parties whether in person, through any digital media, blogs, news sources, social networks or any other form of communication. You agree not to duplicate, use, or distribute the Applications being tested to anyone else. Applications are provided on the uTest platform for the sole purpose of testing and reporting bugs and other Test Artifacts through such platform and any other use is strictly prohibited. You hereby agree indemnify and hold harmless uTest and its affiliates from any and all losses, claims, damages, fees, expenses or other liabilities arising from or relating to your release of information in violation of the foregoing and further acknowledge and agree that you shall be individually liable to any company who's information you improperly distribute.

Unless otherwise prohibited by uTest or a uTest customer pursuant to a specific Statement of Work or Order Form, your status as a Member does not preclude you from working as an independent contractor or employee of any other entity, unless you are a uTest Community Project Manager (CPM) or Test Team Lead Premier (TTL Premier). If you are a uTest CPM or TTL Premier, you shall not have an active account with another crowd-sourced company involved in testing services. Additionally, you shall not work with another crowd-sourced company involved with testing services within one year of ending your last uTest CPM or TTL Premier assignment. You hereby represent and warrant to uTest that your provision of software testing services as a Member will not violate any contract or agreement to which you are, or may become, bound, including, but not limited to, any employment agreement, services agreement, non-competition agreement or confidentiality agreement, whether or not reduced to writing.

You agree not to solicit (other than by general advertisement), or hire, any employee or subcontractor of uTest (including, without limitation, any Member which performs testing services for uTest) either on behalf of Your Company, or on behalf of any other company during the term of this Agreement and for a period of one year thereafter. You also agree not to communicate with uTest and Applause Customers outside of the uTest Platform.

Prior to beginning work on any particular testing project/cycle, you shall verify and certify to uTest that you do not work for and are not affiliated with any competitor of the company whose software you will evaluate.

You agree not to falsify the identity of yourself or any third-party. You agree to comply with all policies, rules and regulations promulgated by uTest from time to time. You agree and acknowledge that uTest shall not be liable for any damage caused to any computer hardware or technology environments by use of the uTest service or performance of testing services through uTest. You acknowledge that your access to the Site, the Site Content and your eligibility to participate in testing services as a Member is strictly conditioned upon your acceptance of such disclaimer of liability.

You shall be entitled to receive payment solely for bugs and other Test Artifacts that you identify during your performance of testing services and that you report to, and that are approved by, the applicable Company. You shall not be entitled to receive payment based on the time you spend analyzing bugs or other Test Artifacts or otherwise performing testing services. Further, only the first Member to identify and post a bug or other Test Artifact to the Site, which bug or other Test Artifact is approved by the applicable Company, shall be entitled to payment for identifying such bug or other Test Artifact. Fees payable to Members may vary from project to project and may be changed by uTest at any time. The current fee payable for the identification of approved bugs or reporting of other Test Artifacts with respect to each project shall be posted to the Site on the applicable project's page.

You acknowledge and agree that each Company shall have the right to unilaterally accept or reject a Test Artifact reported by you and that you shall not receive payment for any rejected Test Artifact reports. You hereby agree and acknowledge that uTest shall have no liability for any such rejection by Companies, regardless of the reason for such rejection. uTest shall, in its sole discretion from time to time, promulgate rules and procedures regarding disputes by Members of Company rejections of Test Artifact and bug reports. Members shall have no right to either control or influence their fee rate or feedback regarding their reputation or success. In the event of any breach of these Terms of Use, as determined by uTest in its sole discretion, uTest shall have the absolute discretion to remove the breaching Member's access to the Site immediately and without prior notification or explanation. In the event that uTest determines that a Member has engaged in fraud, uTest may freeze any funds deposited on a Member's debit or credit card (as described below) and shall have the right to report the offending Member to the appropriate authorities.

You are responsible for paying your own federal, state, local and other taxes on fees received from uTest and, unless uTest determines that it has withholding obligations with respect to payments to be made to you, it shall not withhold any taxes and shall have no liability related thereto. If you are a U.S. resident, uTest may require you to complete and submit a Form W-9 and any other documentation it requires in order to comply with its tax withholding obligations. You acknowledge that uTest may share a Member's profile (excluding personal information), as completed by you, with Companies and other Members. Members may be entitled to a referral commission. The referral commission payable will be listed on the Referrals page if the Site and may be changed by uTest from time to time without prior notice. If the commission rate is changed, it will only affect referrals made after the revised commission rate is announced. You may not refer yourself, nor sign up for multiple accounts to collect referral fees. You may not partner with any other User to share or transfer the commission made from your own account. Violations of these terms may result in the termination of your access to the Site without any credit or payment by uTest. uTest reserves the right to delay or cancel the payment of referral commissions if it determines the referred user will not pay the fees they were charged.

Governing Law

These Terms of Use shall be governed by, and interpreted in accordance with, the laws of the Commonwealth of Massachusetts. The appropriate courts located in the Commonwealth of Massachusetts shall have exclusive jurisdiction and venue to resolve any disputes that may arise in which uTest is a party. Any disputes between members and companies remain solely between such companies and members. You acknowledge and agree that uTest will not be a party to any such dispute or be obligated to take any action or refrain from taking any action toward resolving any such dispute. If you have a dispute with any other Users of the Site, you hereby release uTest from any and all claims, demands, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, relating thereto.

Method of Payments to Members

Payments to Members by uTest shall be made one of two ways: 1) Members with a PayPal account may register the account on the Site and payments will be made directly to the Member's PayPal account on the 15th and last day of each calendar month. Should the 15th or last day of the month fall on a weekend, the payment will be made on the next business day; or 2) Members may register for a debit card through Payoneer, Inc. ("Payoneer") and payments will be made by loading the Member's debit card on the 15th and last day of each calendar month. Should the 15th or last day of the month fall on a weekend, the payment will be made on the next business day. All amounts are stated in and all payments will be made in U.S. dollars.

It is each member's responsibility to either register the member's PayPal account with the site or register for a Payoneer account. If, within ninety (90) days after the end of the first calendar month for which a member is entitled to payment, the member has not registered the member's PayPal account with uTest or registered for a Payoneer account, then any right such member had to receive such amounts will be automatically forfeited.

It may take up to five (5) business days to load a Payoneer debit card. uTest shall pay the initial start-up fee for a member's Payoneer account and the monthly upload fee. There may be additional fees, however, charged against amounts payable to Members, including, but not limited to, expedited load fees and lost or stolen card fees. If you elect to register for a debit card through Payoneer, the debit card agreement shall be solely between you and Payoneer and you agree and acknowledge that uTest shall not be deemed a party to, or liable for, any costs, damages, liabilities or expenses arising from or relating to such agreement. uTest reserves the right to suspend a withdrawal if the source of the funds used by uTest to fund the payment to the Members is suspected to be fraudulent. Any funds received by uTest from an account determined to have made a fraudulent deposit (e.g. using a stolen credit card) will be reversed immediately. If in a fraudulent payment situation, a withdrawal has already been processed from your uTest account with respect to the funds in question, you will be expected to return the funds to your uTest account or face account termination and reporting by uTest to the appropriate authorities.

© Copyright 2014 uTest Inc. | 100 Pennsylvania Ave., Framingham, MA 01701

END OF TERMS & CONDITIONS (For non-binding uTest community member guidelines, please see Rules of Engagement)