Last Modified: May 14, 2019
Hello and welcome to the Terms of Service for Userbrain! This is an agreement (“Agreement”) between Userbrain GmbH (“Userbrain"), the owner and operator of www.userbrain.net and the Userbrain software, applications, components, Userbrain Services (defined below) offered (collectively the “Platform”) and you (“you”, “your” or “User”), a User to the Platform.
Throughout this Agreement, the words “Userbrain,” “us,” “we,” and “our,” refer to our company, Userbrain, as is appropriate in the context of the use of the words.
After registering, where required, we shall grant you access to the Platform as permitted by us and in accordance with this Agreement. All rights not explicitly granted are reserved for Userbrain. Where you download software to access our Platform, we grant you a limited, fully revocable, non-exclusive license to download a copy of our Platform onto your electronic device(s), as permitted by us. If you breach this Agreement, your access or license to use our Platform may be terminated at our discretion. Additionally, we may revoke your access or license to use our Platform if we believe that your actions may harm us, our business interests, or any third party rights. Failure by us to revoke your access does not act as a waiver of your conduct.
User acknowledges that the structure, organization, design, and code of the Platform and all related software components are proprietary to Userbrain and/or Userbrain's licensors and that Userbrain and/or its licensors retains exclusive ownership of the Platform, any documentation, information and, any and all other intellectual property rights relating to the Platform, including all modifications, copies, enhancements, derivatives, and other software and materials developed hereunder by Userbrain. User shall not sell, copy, reproduce, transfer, publish, disclose, display or otherwise make available the Platform, access to the Platform, or any portions of the Platform including any modifications, enhancements, derivatives, and other software and materials developed hereunder by Userbrain to others in violation of this Agreement. User shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Platform, including any modifications, enhancements, derivatives, and other software and materials developed by Userbrain. User agrees to make all necessary and reasonable efforts to comply with the above provisions, in a manner which User takes to maintain its own intellectual property rights, in order to maintain Userbrain's rights as stated within this Agreement and to take appropriate action as instructed or required by Userbrain to maintain its intellectual property rights.
Through the Platform, Userbrain may make services available to you, including but not limited to user testing services. (collectively the “Userbrain Services”). Through the Userbrain Services, Users may be able to test and provide feedback to software companies, mobile applications, and websites for Userbrain clients and other third parties (each a “Test”). Please be aware that any Userbrain Services and the Platform are offered “as-is” and “as-available.” Additionally, the Userbrain Services along with any information or content found on our Platform, including any notifications, reports, analysis, or tools provided, are offered only for informational purposes only. You agree that any information or notifications from the Platform may be inaccurate, unsubstantiated or possibly even incorrect. The Platform and Userbrain Services are not intended to, and do not, constitute legal, professional, medical, or healthcare advice or diagnosis, and may not be used for such purposes. Further, Userbrain has no liability to Users for any third party content, including but not limited to content, User Content, third party content, Test content, data, information, copy, images, URL names, and anything else submitted by you or any third parties using the Platform (collectively “Non-Userbrain Content”). Specifically, Userbrain shall not be liable for any errors or accuracy related to any Non-Userbrain Content. All errors shall be at the sole responsibility and expense of the User or the third party submitting such Non-Userbrain Content. Additionally, we shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Platform, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you; inability to access to the Platform; failure of a communications satellite, strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation of or access to the Platform.
Please be aware that some Tests may require screen capture and/or the recording of you. You agree that Userbrain may collect recordings of the entire Test session which may include recordings of your face, voice, likeness, interactions, comments, navigation, sensitive information, sounds, and suggestions. You agree that such recordings may be shared with Userbrain’s clients or third parties that have paid for the Test.
You agree that all Tests are confidential and you will treat all Tests in the same manner that you would treat your own confidential information. You agree that you shall not use or disclose, except as expressly authorized by Userbrain, any Tests, recordings, or any associated information, unless such information is publicly known. Where required you may be required to sign a non-disclosure agreement.
User hereby represents and warrants that: (1) User shall provide all materials and expenses related to the provision of any Tests, including but not limited to electronic equipment, network connections, video recording equipment, and other devices as required to perform any Tests; (2) User is duly authorized and has the power and authority to enter into this Agreement; (3) User will not violate any agreements with any third parties as a result of entering into this Agreement with Userbrain; (4) User will in good faith abide by this Agreement and all other laws, rules, and directions as provided by Userbrain; (5) User shall perform the Tests in a professional and diligent manner; and (6) User shall use the Platform only for legal and lawful purposes.
When using our Platform, User is responsible for its use of the Platform. You agree to the following:
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Additionally, if we believe that your actions may harm us or a third party we may suspend or terminate your use of the Platform. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Userbrain reserves the right to suspend or terminate any account at any time without notice or explanation.
User’s ability to submit or transmit any information through the Platform, including but not limited to data, reviews, video content, written content, images, or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted. We provide industry standard security but we cannot guarantee the absolute safety and security of any such User Content. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion.
When you submit any User Content to us, you grant Userbrain, its partners, affiliates, Users, representatives and assigns a non-exclusive, limited, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, or use and reuse all or part of your User Content for the purpose of providing you any services associated with the Platform for the duration of this Agreement. You agree that this license allows us to share your User Content with our clients. Additionally, you grant to Userbrain a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of our Platform. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to you.
When submitting any User Content to us, you agree that all of the individuals whose names, voices, photographs, likenesses who paper or have been used in the User Content, have authorized and approved of User’s use thereof, and Userbrain shall have the right to use all names, voices, photographs, likenesses, appearance and performances contained in the User Content in connection with the exploitation, promotion, and use of the license granted within this Agreement. Further , you represent and warrant the following: (1) User owns or has properly licensed all User Content provided; (2) the User Content does not and will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; (3) the User Content offered does not violate any Austrian, international laws, or any third party agreements; and (4) User has the absolute right to grant to Userbrain, all rights, licenses and privileges granted to or vested in Userbrain under this Agreement.
Userbrain shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, Userbrain shall have the right, but not the obligation, to remove any User Content at its sole discretion. For example, we may remove User Content if we believe that any User Content may harm us or our business interests. Except where required by law, we have no obligation to retain or provide you with copies of any User Content.
Although we try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available. Only Users who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by you or give you any desired results.
We reserve the right to alter, modify, update, or remove the Platform or any portions thereof, at any time at our discretion. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide you access to previous versions of our Platform. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.
User agrees to use the Platform as the exclusive means of communication by and between you and any Userbrain clients. You may not attempt to provide any Userbrain clients any of your contact information and you agree not to attempt to contact such Userbrain clients via social media or any other means of communication. This non-circumvention section does not preclude you from using or purchasing any products or services from any Userbrain clients. You hereby give Userbrain permission to review communications made between you and any of our clients on the Platform to enforce this provision. Where you breach this provision we may withhold any and all payments and may terminate your account at our discretion.
Once a User has completed a Test, the User may be required to upload such Test to the Platform. Userbrain shall review the User Content submitted to ensure that the Test has been satisfactorily completed. Please be aware that approval for any completed Tests is at Userbrain’s sole discretion and any completed Test may be rejected at Userbrain’s sole discretion. Approval may be based on a number of factors including but not limited to, recording quality, information submission, failure to follow Test instructions, and other criteria as determined by Userbrain. Upon approval Userbrain shall issue a credit to User’s account minus a deduction for any service fees, processing fees, taxes and other deductions (“Userbrain Fee”) as necessary from all payments made to User. The amount credited for any completed Test may be found on the Platform or User’s account dashboard. Userbrain reserves the right to change and alter any credits for completed Tests or any Userbrain Fees at any time, if Userbrain alters such Userbrain Fee it shall contact User and provide notice before any such increase in Userbrain Fees are initiated. In the event of a dispute between User and Userbrain, User agrees that Userbrain may withhold all funds until such dispute is resolved. In order for User to withdraw any payments, Userbrain may require a minimum threshold to be reached within a User’s account prior to withdrawal. Where any withdrawal request is made such withdrawal may take time to process and will be generally delivered to User’s account within one (1) week.
In order for Userbrain to comply with tax laws, Users may be required to submit tax documents as required by Userbrain. User agrees to comply with any requests to submit any tax documentation, as requested by Userbrain and shall reasonably assist Userbrain with any requests related to its tax compliance. User agrees that Userbrain cannot and will not provide User with any tax advice and any such questions should be directed to User’s tax attorney or other tax professional.
From time to time, Userbrain may place a hold (“Hold”) on a User’s account. Some of the reasons that we may place a Hold on User’s account include but are not limited to the following: (1) if we have reason to believe that you or your actions have violated this Agreement, may harm our business, are deceptive, misleading, unlawful, or have harmed a third party or interfere with a third party contractual right; (2) at the request of our payment processors; or (3) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If you have questions about a Hold we may have placed on your account, or need information about how to resolve the Hold, please contact us. Additionally, we may suspend User’s access to the Platform or his/her ability to take tests while such Hold is in place.
Where User has not accessed its account for an extended period of time, Userbrain may suspend, make inactive, or otherwise archive User’s account (“Inactive Account”). If User wishes to reactivate the Inactive Account they must contact Userbrain at email@example.com. Where a User has an Inactive Account, Userbrain may maintain the account at its discretion. However, any Inactive Accounts may be removed or deleted at the sole discretion of Userbrain. Where User has an Inactive Account, Userbrain shall have no liability to User in relation to any loss of materials from such Inactive Account and shall have no duty to maintain any Inactive Account
The name “Userbrain”, the Userbrain Platform along with the design of the Userbrain Platform and any text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein ("Marks"), are owned by or licensed to Userbrain, subject to copyright and other intellectual property rights under Austrian and foreign laws and international conventions. Userbrain reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution anything contained within the Platform unless we have given express written permission.
Userbrain or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Userbrain. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Userbrain’s products might seem similar to ideas you submitted to Userbrain. If, despite our request that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of Userbrain, without any compensation to you; (2) Userbrain may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Userbrain to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
THE PLATFORM AND ALL USERBRAIN SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER USERBRAIN, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS, AFFILIATES, OR AGENTS MAKE ANY CLAIMS, REPRESENTATIONS, WARRANTIES, OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM OR ANY USERBRAIN SERVICES; (2) ANY INFORMATION OR CONTENT PROVIDED VIA THE PLATFORM; (3) THE SAFETY PERFORMANCE OR DURABILITY OF THE USERBRAIN SERVICES OR THE PLATFORM; OR (4) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO USERBRAIN OR A THIRD PARTY. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. USERBRAIN DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. USERBRAIN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS OR THIRD PARTY INFORMATION) ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. USERBRAIN DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND USERBRAIN SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES. USERBRAIN DOES NOT WARRANT THE ACCURACY, COMPLETENESS, TIMELINESS, OR USEFULNESS, OR ENDORSE ANY THIRD PARTIES FOUND ON THE PLATFORM OR THE SERVICES OF ANY USERBRAIN CLIENTS.
IN NO EVENT SHALL USERBRAIN, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE USERBRAIN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME JURISDICTIONS, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SPECIFICALLY, IN THOSE JURISDICTIONS NOT ALLOWED, WE DO NOT DISCLAIM LIABILITY FOR: (1) DEATH OR PERSONAL INJURY CAUSED BY USERBRAIN’S NEGLIGENCE OR THAT OF ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS; (2) FRAUDULENT MISREPRESENTATION; OR (3) ANY LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE EITHER NOW OR IN THE FUTURE. WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS WE HAVE PAID YOU IN THE PAST (6) MONTHS TO USE OUR PLATFORM OR ONE HUNDRED EUROS.
You agree to defend, indemnify and hold harmless Userbrain, its officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
This defense and indemnification obligation will survive this Agreement and your use of the Userbrain Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If you believe that any content owned by you has been infringed upon please send us a message which contains:
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Userbrain, firstname.lastname@example.org
In the event that you receive a notification from Userbrain stating content posted by you has been subject to a copyright takedown notice, you may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements. Please send this counter-notice in accordance with the takedown notice instructions above.
This Agreement shall be governed by the laws in force in Austria. The offer and acceptance of this contract is deemed to have occurred in Austria.
This Agreement is governed by and construed in accordance with the laws of Austria and you irrevocably submit to the exclusive jurisdiction of Austrian courts located within Graz, Austria.
Except as expressly provided for otherwise, this Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between User and Userbrain. User has no authority (and shall not hold himself or herself out as having authority) to bind Userbrain and User shall not make any agreements or representations on Userbrain's behalf without Userbrain's prior written consent. User shall be responsible for, and shall indemnify and hold Userbrain harmless for any claims, suits, or actions related to this provision, including any such claims brought by User or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with Userbrain are deemed to conflict with each other’s operation, Userbrain shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.
You may cancel your account at any time via your Userbrain dashboard or contacting us at email@example.com. Please be aware that upon termination of your account, access to portions of our Platform may be become immediately disabled and any User Content may become immediately inaccessible. We may terminate this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of your current or future actions may legally harm Userbrain, our business interests or a third party, at our discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform and our Platform.
The communications between you and Userbrain use electronic means, whether you visit the Platform or send Userbrain e-mails, or whether Userbrain posts notices on the Platform or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to receive communications from Userbrain in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Userbrain provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Where you have any questions, issues, or if you are having trouble accessing or using the Platform, please contact us through the Userbrain provided channels. You agree that you will solely use the Platform or Userbrain approved channels for all communications related to your use of the Platform or issues with this Agreement. Please contact us at firstname.lastname@example.org or at
8010 Graz, Austria
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