1. UserVoice Service, Platform, and API
2. Account Holder’s End Users.
Access to the Service by the End Users shall be governed by the UserVoice End User Terms of Service, which may be amended from time to time as described therein UserVoice End User Terms of Service (“UserVoice End User Terms”).
3. Terms of Payment.
Account Holder shall be solely responsible for the payment of, and shall pay and indemnify UserVoice against, all applicable federal and state taxes, and payments to UserVoice under this Agreement (except for taxes assessed on UserVoice’s net income) within 30 days upon Account Holder’s receipt of an invoice from UserVoice, unless otherwise specified in Account Holder’s Order Form. Notwithstanding the foregoing, in certain states where UserVoice is responsible under state laws for the collection and payment of applicable sales taxes, UserVoice may invoice Account Holder for such state sales taxes, unless otherwise agreed to by the parties in writing.
4. Term; Termination.
- The term of this Agreement shall be as set forth in a written agreement between the parties (the “Term”). Unless otherwise agreed to in writing, the subscription term and the term of this Agreement shall automatically renew (the “Automatic Renewal”) on the first day following the end of the current subscription term (the “Renewal Date”). Account Holder may cancel such Automatic Renewal by terminating the subscription and this Agreement as set forth herein or by providing written notice, at least 30 days prior to the Renewal Date, that Account Holder does not wish to renew the subscription.
- Either Party may terminate this Agreement in the event that the other party breaches this Agreement and fails to cure such breach within 30 days after receiving written notice thereof. In the event that UserVoice terminates due to Account Holder’s breach, (a) Account Holder will remain liable for any amount due under this Agreement (adjusted on a pro rata basis, if applicable) and (b) UserVoice will destroy all Account Holder Data (defined below) in its possession after giving Account Holder a reasonable opportunity to download such data for a period of 60 days.
- Account Holder may terminate this Agreement and its subscription to the Service by providing UserVoice with written notice of termination. In the event of any such termination, Account Holder will not be entitled to a refund of prepaid subscription fees; and UserVoice will destroy all Account Holder Data in its possession after giving Account Holder a reasonable opportunity to download such data for a period of 60 days.
5. Intellectual Property Ownership and Licenses
- UserVoice Ownership Rights. UserVoice and its licensors shall own and retain all right, title, and interest in and to the Service, UserVoice Platform, and APIs.
- License Grant. UserVoice hereby grants to Account Holder a worldwide, royalty-free, non-exclusive, revocable, limited license to use the Service, the UserVoice Platform, and the API during the Term to use the UserVoice Service as expressly provided hereunder. Account Holder agrees not to copy, alter, modify, or create derivative works of the UserVoice Platform or API or otherwise use the Service in any way that violates the use restrictions contained in this Agreement. UserVoice does not grant to Account Holder any license to the intellectual property of UserVoice or its licensors unless expressly granted herein.
- Login and Hosting Restrictions. Account Holder acknowledges and agrees that Account Holder’s login information for the Service (e.g., username and password), including, without limitation, login information provided to individuals who Account Holder invites to be administrators or agents on Account Holder’s account, may be used by only one person, and use of a single login for the Service by multiple people is strictly prohibited. For the avoidance of doubt, Account Holder agrees that it shall not host the Service, including without limitation any UserVoice widget or track.js code, on its own or any third-party servers. Notwithstanding anything to the contrary contained herein, the parties agree that if Account Holder violates the provisions of this Subsection (B), UserVoice shall have the right to terminate this Agreement with 10 days written notice.
- Account Holder Data. As between UserVoice and Account Holder, Account Holder shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by Account Holder (the “Account Holder Information”) or its End Users to UserVoice in connection with the Service, including any ideas or inventions contained therein (collectively, the “Account Holder Data”), provided, however, that Account Holder hereby grants to UserVoice a worldwide, royalty-free, non-exclusive license to use during the Term the Account Holder Data solely for the purposes of (i) fulfilling its obligations to Account Holder hereunder and (ii) generating backend reports, graphs, and other materials for internal use in UserVoice’s day-to-day operations of the Service. Notwithstanding the foregoing, “Account Holder Data” does not include non-identifiable aggregate data compiled by UserVoice for purposes of improving, maintaining, and/or optimizing the Service, which UserVoice may retain and use internally without limitation.
- Account Holder Logos and Designs. Account Holder shall retain all right, title and interest in and to all of Account Holder’s logos, promotional graphics and related marketing designs (collectively, the “Account Holder Art”); provided, however, that Account Holder hereby grants to UserVoice a worldwide, perpetual, royalty-free, fully sublicenseable, non-exclusive license to use the Account Holder Art, as well as Account Holder’s corporate and/or trade name for purposes of marketing UserVoice’s products and services to third parties, subject to Account Holder’s right in each instance to approve the manner and form of such use (which approval shall be in writing and shall not be unreasonably withheld or delayed). For the avoidance of doubt, Account Holder Information shall include Account Holder Art.
- UserVoice respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of End Users who UserVoice, in its determination, believes have repeatedly infringed others' rights. If Account Holder believes that its work has been copied in a way that constitutes copyright infringement, or its intellectual property rights have been otherwise violated, or is made aware by an End User that such End User’s intellectual property rights have been violated, please provide the following information to UserVoice’s copyright agent via email to email@example.com or by mail to UserVoice, Inc., Attn: Copyright Agent, 234 Fayetteville St., Fl 3, Raleigh, NC 27601:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that Account Holder claims has been infringed;
- Description of where the material that Account Holder claims is infringing is located on the site, including a url link;
- Account Holder’s address, telephone number, and email address;
- A statement by Account Holder that is has a good faith belief that the disputed use is not authorized or consented to by the copyright owner, its agent, or the law; and
- A statement by Account Holder, made under penalty of perjury, that the above information in Account Holder’s notice is completely accurate and that Account Holder is the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
6. Fair Usage Limits
Account Holder access and use the Service under this Agreement, including the number of End Users accessing the Service, are subject to usage limits and restrictions, which are set forth in Account Holder’s Order Form and/or the Account Holder’s Admin Console. Account Holders can check their current and last month usage from within their Admin Console. Account Holder agrees to use the Service within the stated usage limits. All usage in excess of the stated limits will be subject to additional monthly spend requirements. It is Account Holder’s responsibility to ensure that Account Holder does not exceed those limits and restrictions. UserVoice’s failure to enforce any usage limits or excess spend requirements shall not constitute a waiver of any such limits or spend requirements or any other provision of this Agreement. UserVoice has the right, but not the obligation, to monitor or remotely audit the use of the Service.
7. Representations and Warranties
- Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; (c) it has obtained and shall maintain throughout the all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; and (d) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws.
- Account Holder further represents and warrants that (i) The Account Holder Information and (b) its chosen domain name (if any) as hosted on the Service (for example, "acme.uservoice.com") does not infringe the copyright, trademark, or any other intellectual property rights of any third party, and that such domain name is otherwise in compliance with this Agreement. UserVoice reserves the right, in its sole discretion, to relocate Account Holder's hosted area within the UserVoice Platform to an alternate domain name on the Service if UserVoice has reason to believe Account Holder’s chosen domain name is in violation of this section.
- Account Holder Indemnification. Account Holder agrees to indemnify and hold UserVoice and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of (a) Account Holder’s breach of the representations, warranties and covenants made by Account Holder herein, (b) the Account Holder Information, or (c) Account Holder’s gross negligence or willful misconduct. Account Holder will pay any costs and damages awarded against UserVoice in any such action, or agreed to under a settlement signed by Account Holder, that are attributable to any such claim, but shall not be responsible for any compromise made or expense incurred without Account Holder’s consent. Such defense and payments are subject to the conditions that (a) UserVoice gives Account Holder prompt written notice of such claim, (b) tenders to Account Holder sole control of the defense and settlement of the claim, and (c) reasonably cooperates with Account Holder when requested in connection with the defense and settlement of the claim; provided that UserVoice may participate in such defense with counsel of its choosing, at its sole expense.
- UserVoice Indemnification. UserVoice agrees to indemnify and hold Account Holder and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, by third parties arising out of (a) UserVoice’s beach of the representations, warranties and covenants made by UserVoice herein, (b) an allegation that the Service infringes a U.S. patent or copyright of a third party (an “IP Claim”), or (c) UserVoice’s gross negligence or willful misconduct. UserVoice will pay any costs and damages awarded against Account Holder in any such action, or agreed to under a settlement signed by UserVoice, that are attributable to any such claim but shall not be responsible for any compromise made or expense incurred without UserVoice’s consent. Such defense and payments are subject to the conditions that (a) Account Holder gives UserVoice prompt written notice of such claim, (b) tenders to UserVoice sole control of the defense and settlement of the claim, and (c) reasonably cooperates with UserVoice when requested in connection with the defense and settlement of the claim; provided that Account Holder may participate in such defense with counsel of its choosing, at its sole expense. UserVoice will have no liability to so defend and pay for any IP Claim to the extent it (i) is based on modification of the Service other than by UserVoice, with or without authorization; (ii) results from failure of Account Holder to use the most up to date version of the Service; (iii) is based on the combination or use of the Service with any software (including, without limitation, open source software), program or device not provided by UserVoice if such infringement would not have arisen but for such use or combination; or (iv) results from use of the Service by Account Holder after this Agreement and the right to access the Service has terminated. Should the Service, or the operation thereof, become or in UserVoice’s opinion be likely to become, the subject of such claim described in this Section 8(b), UserVoice may, at UserVoice’s option and expense, procure for Account Holder the rights required to continue using the Service, replace or modify the Service so that it becomes non-infringing, or terminate the rights granted hereunder for use of the Service. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THIS SECTION 8(b) STATES USERVOICE’S SOLE AND EXCLUSIVE LIABILITY, AND ACCOUNT HOLDER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9. Disclaimers; No Warranties
UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, USERVOICE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION THE SERVICE, THE USERVOICE PLATFORM, OR THE API, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. USERVOICE DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE, AND ACCOUNT HOLDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. ACCOUNT HOLDER SHOULD NOTE THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD-PARTY INFRASTRUCTURES THAT ARE NOT UNDER USERVOICE'S CONTROL (SUCH AS A THIRD-PARTY SERVERS). USERVOICE MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURES.
10. Limitation of Liability and Damages
EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, PROFITS OR OTHER LOSS, THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AGGREGATE FEES DUE BY ACCOUNT HOLDER TO USERVOICE HEREUNDER DURING THE PRIOR 12 MONTHS.
“Confidential Information” shall mean (a) all Account Holder Information; and (b) any information generally understood to be confidential in nature or designated as such by either party, but shall not include information that: (a) is independently developed by the receiving party without access to the other party's Confidential Information; (b) becomes publicly known through no breach of this Agreement by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a legal or governmental authority. Each Party shall safeguard and keep confidential all Confidential Information that is disclosed by the other using at least the same degree of care the recipient uses to safeguard its own Confidential Information, but shall not use less than a reasonable degree of care. Neither party shall, subject to the license expressly granted herein, use, sell or disclose any Confidential Information of the other party except as specifically contemplated herein. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information solely as necessary to comply with applicable laws, rules, or regulations; provided, however, that such party shall immediately notify the other party in writing of such requirements so that a protective order or other appropriate remedy can be sought, shall cooperate in such efforts at such other party’s expense, and shall comply with any protective order such other party may procure.
UserVoice reserves the right to modify these terms from time to time without notice. Your continued usage of the Service constitutes your acceptance of these terms. Neither party shall assign any of its rights, obligations or licenses hereunder without the prior written consent of the other party; provided, however, that either party may assign this Agreement and its rights and obligations hereunder, to a successor of such party by way of merger, consolidation or acquisition of all or substantially all of the assets or business of such assigning party so long as such successor shall agree to be bound by all of the terms and provisions hereof. UserVoice and Account Holder are independent contractors, and neither UserVoice nor Account Holder is an agent, representative, employer, employee, or partner of the other. UserVoice and Account Holder shall each have sole responsibility for all acts and omissions of their respective personnel. This Agreement sets forth the entire agreement between UserVoice and Account Holder. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. UserVoice and Account holder agree that any disputes relating to this Agreement will be heard in the in the federal or state courts located in Wake County, North Carolina, and both parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Any notices under this Agreement shall be sent to UserVoice by electronic mail at firstname.lastname@example.org or nationally recognized express delivery service at 234 Fayetteville St, Fl 3, Raleigh, NC 27601, and such notice shall be deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.
Amendment to Terms of Service Applicable to Governmental Users/Members
If you are an employee of the federal government of the United States and are using UserVoice for official government work, the TOS is amended as follows: Amendment to UserVoice Terms of Service.