Terms of Use for Customers

uTest® Terms of Use Please carefully review the terms and conditions set forth below (as they may be amended from time to time, the "Terms of Use") before using the uTest.com web site (the "Site"). The terms "You", "Your", "User", or "Users" refer to anyone accessing our services or the Site for any reason including, without limitation, a company or individual representing a business that registers to have its software tested through the services offered on the Site (each, a "Company"), or anyone else who accesses the Site. The terms "uTest", "We", "Us", or "Our" refer to uTest, 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 amendments or modifications to the Terms of Use constitutes your agreement to be bound by all such amendments or modifications.

I. Generally 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. Users should use their own efforts to confirm such information with a professional(s) in the pertinent field(s).

Links to third-party websites 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 Company hereby agrees to fully indemnify uTest from and against any third-party claims relating to alleged infringement by such Company 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 (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 Users use the Interactive Features at their own risk. Users 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 User 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 User's own website, unless the website in question relates directly to a project on the Site; notwithstanding the foregoing, Users may post the URL of a website containing a portfolio of sample works or the User'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. Users 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 User 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 on behalf of your Company. uTest reserves the right to terminate any User's access to the Site without notice, at any time, for any or no reason. A Company 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 Users for all damages (including but not limited to consequential damages, lost profits, indirect or punitive damages) arising from or relating to such User's use of the Site or the Site Content to the fullest extent of the law.

II. Provisions Applicable to Customers Any Company making use of the Site hereby acknowledges and agrees that, with respect to testing services, uTest engages Testers to evaluate and provide software testing services. No guarantee is given that any or all test artifacts, including, but not limited to, bugs, test cases, test data, test scripts, and other test artifacts implemented by uTest from time to time, (collectively, "Test Artifacts") in connection with a Company's software will be found, diagnosed, or resolved as a result of engaging Testers through the Site.

uTest may, without liability hereunder and for the purpose of testing only, provide your company’s confidential information to Testers which have entered into non-disclosure agreements with uTest. You may require, through uTest’s platform, such Testers participating in the testing of your company’s technology agrees to a non-disclosure agreement directly with uTest prior to such testing. For this purpose, confidential information shall mean any and all information which is either clearly marked as being confidential or which would be deemed confidential to a reasonable person receiving such information. Confidential information shall not include any information which (i) was in the public domain prior to disclosure, (ii) becomes part of the public domain through no wrongful act of uTest, (iii) was already known to uTest prior to such disclosure, or (iv) is independently developed by uTest without reference to such confidential information.

uTest shall retain all right, title and interest in and to its pre-existing materials, software, technologies, methodologies, and know-how, including but not limited to its proprietary software- (“SAAS”) platform which is currently accessible at the URL’s “utest.com” and my.utest.com” (collectively, “uTest IP).

uTest shall indemnify, hold harmless and defend your company, your officers, directors and employees from any and all claims, losses, demands, litigation, expenses and liabilities of every nature arising from any third-party claims that the uTest services and/or uTest IP infringe the intellectual property rights of such third-party.

Unless you notify uTest in writing, uTest may display your company name, logo and public description on the Site or in other uTest marketing materials.

Companies are liable for the payment of all applicable state and local sales, use, or other similar taxes or duties that are levied upon and related to the performance of obligations or exercise of rights under these Terms of Use. uTest shall collect and remit such taxes from Customer, unless Customer provides uTest with a valid tax exemption certificate.

Companies may purchase:

(i) Subscriptions

a. Subscriptions may be purchased on a monthly, quarterly or annual basis. The subscription period begins upon signature of the Order Form or Statement of Work, as applicable, and payment is due upon receipt of invoice. Subscriptions may contain auto-renewal provisions and are cancellable after the minimum commitment specified in the Order Form or Statement of Work, upon written notification to finance@utest.com.

(ii) On-demand testing services for various lengths of time

(iii) Fixed Fee & On-Site Tester Services

a. Companies may purchase testing services at a fixed fee for non-recurring testing needs and non-functional testing services. These services need to be completed within the time period stated in the uTest order form or statement of work. If the company does not use the testing services within this time period, the testing services will be deemed to have been earned by uTest and the company shall have no right to a cash refund or credit. Companies may also purchase on-site tester services for a fixed hourly rate.

(iv) Apphance software

a. Customers may purchase Apphance management software. Please refer to the Apphance terms & conditions located at http://www.apphance.com/terms-of-use.

III. Provisions Applicable to All Testing Services

A Company must either accept or decline new Test Artifacts reported by Testers by the earlier of (i) the tenth (10th) day following the receipt of an applicable Test Artifacts report from Testers, or (ii) the date that the testing project cycle is closed (hereafter, the "Acceptance Period"). You agree to pay uTest for all Test Artifacts which are either approved during the Acceptance Period or which are not timely declined during the Acceptance Period (i.e. which shall be deemed to constitute acceptance by you). You are responsible for the timely analysis, testing, approving and fixing of bugs and other Test Artifacts reported by Testers.

You agree not to use your uTest.com account to post false or misleading project descriptions. You may not post project descriptions that are inappropriate for uTest's audience, viewers, or visitors, as more fully described below. uTest shall have sole discretion, in determining the appropriateness of any content posted to or available through its web site. You shall not falsify your identity or the identity of any third-party. You agree to comply with all of uTest's specified policies.

You represent and warrant that your content will not include incomplete, false or inaccurate information about your Company, any User or any other individual. You hereby agree to indemnify uTest and its affiliates from and against any costs, expenses liabilities and fees (including legal fees) relating to any claims which result from or relate to your breach of these Terms of Use. By submitting content to the Site (including, but not limited to creating your account; posting a profile, posting a portfolio, posting a testing project/cycle; or sending messages through or to the Site), you hereby grant to uTest a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, display, and perform such content. Providing links to content hosted on servers other than that of the Site (such as a portfolio of sample works hosted on your own web site) will not be considered "submitting" such content for purposes of these Terms of Use.

You agree and acknowledge that uTest may aggregate and share anonymous information with third parties, including data related to general testing time, standards, average number of bugs found and other Test Artifacts reported, the number of bugs fixed, and additional aggregated statistical reports regarding Companies' applications that are being or have been tested. uTest will not specify any Company's name or provide personal information relating to the Company (including e-mail addresses, accounts or financial information), but may mention the business areas or industries in which Companies operate and the type of applications or software being tested.

You agree not to solicit (other than by general advertisement), or hire, any employee or subcontractor of uTest (including, without limitation, any Tester 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.

IV. Provisions Applicable to Security and Vulnerability Customers

1. Provisions Applicable to manual security and vulnerability test cycle performed by uTest community & security experts

In no event shall uTest be liable for any damages arising out of the penetration tests or simulated attacks performed by uTest security experts and community as part as a security and vulnerability test cycle

V. Other General Provisions Applicable to All Users

Limitations on Communication between Users

Except for communications between Companies and Testers regarding projects for which the Testers are providing testing services to the Company, You are prohibited from making direct contact or engaging in any transaction, including commercial transactions, with other Users, whether through the Site or otherwise. You agree not to post Your e-mail address, phone number, or any other method of contact outside of the Site or give any of the foregoing information to another User. Testers and Companies working together on a project shall be provided with the necessary contact information.

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.

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 Testers and Companies remain solely between such Companies and Testers. 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.

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.

Social Network Integration

uTest offers the ability to connect your personal profile at popular social networks with your uTest user profile. Social Networks integrations is designed to make it easy for you to find and connect with others. If you are uncomfortable with sharing your profile information, you should delete it (or not add one). All communications between Users through any such social network shall be subject to the limitations set forth in this Agreement under the heading "Limitations on Communications between Users." From time to time we may make changes to our privacy policy. If we make changes, we will post them on our site to make users aware of what the changes are so users will be aware of what information we collect, how we use it, and when we may disclose it. A User is bound by any changes to the policy when she or he uses the site after those changes have been posted.

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.

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:

Roy Solomon, uTest, 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.

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Heard the news?

In early 2014, uTest will be changing its name to Applause. With an expanded app quality offering including test services, tools, SDKs & integrated analytics, we will do even more to help companies delight their web & mobile users.

The uTest name will live on in our tester community, with an expanded offering for all facets of a tester’s professional life. This includes paid testing projects, hands-on training, networking, events, career resources & more.

While we’ve got a lot of work to do, we’re pumped to tackle both of these bigger, bolder challenges. Get the details on this news here.