General Terms and Conditions User Sense

2022-11-30

This document contains the general terms and conditions of User Sense B.V., with its principal office located at Oude Vaart 14 in Terneuzen, the Netherlands and registered with the Dutch Chamber of Commerce under registration no. 80657109 (hereinafter referred to as "User Sense").

These general terms and conditions consist of four modules: general 'Module A', 'Module B' regarding the platform and the app, 'Module C' regarding the terms of use of the platform and the app, and 'Module D' regarding the processing of personal data.

Module A: General conditions Customer

The terms and conditions included in this module A only apply insofar the counterparty of User Sense is a Customer, as meant in article A.1. However, article A.1; A.2; A.15 and A.16 apply to all counterparties of User Sense, including all uses of the Platform and/or App.

Article A.1. Definitions

The capitalized terms in these Terms and Conditions, both singular and plural, are considered to have the meaning as described in this article:

App: the application of User Sense via which Tests can be conducted.
Account: an account of Customer, Tester and/or an End-user, which can be an Agency account, Client account, Tester account, Moderator account or an Observer account, which grants access to the Platform and/or App.
Agency: a natural or legal person, acting in its professional capacity, that, whether or not for assisting (a) Client(s), concludes an Agreement with User Sense for the provision of Services.
Credits: the method of payment on the Platform, via which Services can be purchased.
Credit Purchasing Agreement: any arrangement or agreement regarding the purchase of Credits, of which the General Terms and Conditions are an integral part.
Customer: the Party, which can be an Agency or a Client, which concludes the Credits Purchasing Agreement, or a Service Agreement via a Quotation, and which can conclude further Service Agreements with User Sense.
Client: a natural or legal person, acting in its professional capacity, that makes use of the Services pursuant to an agreement of an Agency with User Sense, or that concludes a Credit Purchasing Agreement and subsequent Service Agreement(s) with User Sense themselves for the provision of Services.
End-user: being an employee or a third party that, via the Customer, is authorized to access the Services delivered to the Customer by User Sense, acting under the responsibility of Customer, which can be a Client, Tester, Moderator or an Observer.
General Terms and Conditions: these terms and conditions of User Sense.
Intellectual Property (Rights): all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (including copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
Moderator: a user who plays a leading role in the execution of a Test. This can be an End-user, or an employee or third party contracted by User Sense.
Observer: a user who plays an observing role during the execution of a Test. This can be an End-user, or an employee or third party contracted by User Sense.
Party/Parties: User Sense and Customer, together or separately.
Platform: the platform of User Sense that can be accessed via the Website and contains various Tools and functionalities, related to the conduct of UX-research.
Quotation: an offer in Writing from User Sense regarding the provision of Services.
Services: the services that User Sense delivers to the Customer pursuant to a Service Agreement, and can be bought by Customer using Credits on the Platform, or which can be agreed upon by Parties, whether or not via acceptance of a Quotation by Customer, and which can consist of services provided within or outside of the Platform.
Service Agreement: any arrangement or agreement regarding the Services that User Sense provides between User Sense and Customer, which may include the activation of a Tool, of which the General Terms and Conditions form an integral part. The activation of a Tool by a Client that did not purchase the Credits themselves and thus not qualify as a Customer does not constitute a Service Agreement between Client and User Sense. In this case, the Agency connected with and responsible for the Client is deemed to have concluded the Service Agreement with User Sense.
Session: a session which can relate to a Test, which can take place via the Platform, App, and/or external application, and can also take place on-site, involving (a) Tester(s) and potentially (a) Moderator(s), Observer(s), Client and/or Agency. A session can involve many research techniques and may consist of interviews, questionnaires, focus-groups etc.
Test: a UX-test or research that may be conducted on the Platform and/or App, which can involve one or multiple Sessions.
Tester: a person that executes the Test on behalf of User Sense and that completes the registration on the Website, or that executes the Test via, and under responsibility of, Customer and thus qualifies as an End-User.
Tool: a feature or functionality on the Platform (such as a Test), which can be activated by paying Credits, which activation by Customer establishes a Service Agreement.
Website: the website of User Sense, to be found on https://www.usersense.io and all of its subdomains and alternative domain extensions.
Writing: paper writings, e-mail, communication via the Platform or App, to the extent the identity of sender and the integrity of the message can be sufficiently established.

Article A.2. Structure and applicability of the General Terms and Conditions

These General Terms and Conditions apply to all offers and Quotations of User Sense, all Agreements, all uses of the Platform, App and provision of Services.
The General Terms and Conditions consist of several modules. A specific module applies insofar as is included in that specific module.
The definitions as described in article A.1 apply to all modules of these General Terms and Conditions, unless a different meaning is given elsewhere in the General Terms and Conditions.
The applicability of any terms and conditions of Customer is expressly excluded.
Deviations and additions to these General Terms and Conditions are only valid if they are agreed by Parties in Writing.
Insofar the relevant documents and modules are applicable, the Agreement consists of the documents and modules stated below. In case of a contradiction, if a specific module applies, it shall take precedence over module A. In the event of any contradiction between the applicable documents, the following order of precedence applies:
a. additional Written and signed agreements;
b. the Quotation;
c. the Terms and Conditions Contracted Tester.
d. the General Terms and Conditions;

Article A.3. Credit Purchasing Agreement

The Credit Purchasing Agreement between User Sense and Customer is concluded at the moment that Customer confirms the purchase of Credits on the Platform, after which an invoice will be sent to Customer.
After payment by Customer of the amount due, the Credits will be added to the balance of Customer. In deviation from the foregoing, User Sense may inform Customer at its own discretion that the Credits will be added to the balance of Customer after conclusion of the Credit Purchasing Agreement, but before payment by Customer.
Credits are valid for a period of one (1) year after the conclusion of the Credit Purchasing Agreement, unless agreed otherwise in Writing. Once Credits have become invalid, they can no longer be used to activate Tools or otherwise pay for Services. In such case, User Sense is not bound to reimburse the expired Credits.
The validity of Credits can be extended by purchasing new Credits. This means that the validity of all Credits available in the balance will be extended for one (1) year after a new purchase of Credits.
Subject to the conditions laid down in these General Terms and Conditions, Credits are freely redeemable for the purchase of Services or the activation of Tools.
Credits cannot be withdrawn for payment in a certain currency, except in cases of payments to Testers of User Sense.
If, for the purchase of Credits, Customer wants to pay in a currency that is not euros, Customer will be due a currency conversion fee, which will be displayed on the Platform, on top of the then applicable exchange rate of the European Central Bank.
Credits can be transferred by an Agency to a Client that has access to the Platform, App or Services via that Agency, and can be transferred back to the Agency from Client by Agency.
If the Credit Purchasing Agreement constitutes a lasting agreement for the automatic periodic purchase and addition of Credits, this Credit Purchasing Agreement will have a term of one (1) year, unless agreed otherwise in Writing. The term will be automatically extended at the end of each term, unless a Party terminates (in Dutch: opzeggen) the Credit Purchasing Agreement at the end of the current term, subject to a notice period of one (1) month, unless agreed otherwise in Writing.

Article A.4. Service Agreement: conclusion

The Service Agreement between User Sense and Customer is concluded at the moment that Customer pays Credits to activate a Tool, or digitally accepts the Quotation of User Sense.
The content of the Service Agreement is determined by what is included in the Quotation, or by the specifications that Customer indicates on the Platform at activation of a Tool.
For Service Agreements that are concluded by means of acceptance of a Quotation, payment for the Services will take place by paying Credits, which, together with the purchase of Services are automatically bought and redeemed at the moment that the invoice is sent. In deviation from the foregoing, in case User Sense informs Customer, the payment will take place after provision of the Services.
If Customer does not explicitly indicate that it agrees with an offer of User Sense, but nevertheless agrees to it, or if it gives the impression that User Sense is performing work that falls within the description of the Services included in the Service Agreement, the agreement will be deemed to be concluded.

Article A.5. Service Agreement: term and termination

In case no specific duration is agreed upon, the Service Agreement is concluded for the term that is necessary to complete the Services.
Parties can only terminate (in Dutch: opzeggen) the Service Agreement insofar this is provided in these General Terms and Conditions.
User Sense may suspend or give notice to terminate (in Dutch: opzeggen) the Agreement in Writing with immediate effect, without notice of default being required, in the event that Customer is declared bankrupt, the Customer applies for or is granted suspension of payments, the Customer’s activities are ceased or its business is wound up.
Section 6:271 of the Dutch Civil Code and the effect of its provisions are excluded. This means that in case of a dissolution (in Dutch: ontbinding), Parties will not have an obligation to undo performances they already received. For the avoidance of doubt, this means that Credits paid for the provision of Services or activation of Tools will not be refunded by User Sense, and will not be refunded in a currency.

Article A.6. Performance of the Services: general

All Services of User Sense are provided on the basis of best efforts, unless expressly agreed otherwise in Writing.
Customer will provide User Sense with all support that is necessary and desirable to enable correct and timely delivery of the Services. In any event, Customer shall ensure that User Sense has access to all data and other information which User Sense indicates are necessary, or which Customer must reasonably understand to be necessary for the delivery of the Services, and shall provide User Sense with access to all places and accounts under its control that User Sense reasonably requires to provide the Services.
User Sense may suspend performance of the Services if Customer has not provided the necessary support as mentioned in the previous paragraph.
User Sense is not responsible towards Customer for any acts of End-users on the Platform, App or in connection with the Services. Customer shall indemnify User Sense for all claims by third parties in relationship to the use of the Platform and/or App, or in connection with the Services, as a result of acts or omissions of its End-users.
User Sense has the right to engage third parties in the performance of the Services. For instance in order to execute Tests.
Terms and dates of delivery are always indicative unless explicitly designated as fatal.

Article A.7. Performance of the Services: Tests and Sessions

In case Customer wants to conduct a Test, performed by a Tester of User Sense that is not an End-User of Customer, it can activate a Session on the Platform, after payment of Credits.
In case a Session for a Test is an unmoderated Session for which no specific time and date is agreed upon, which is to be conducted by a Tester of User Sense (not being an End-user), User Sense will use best efforts to have suitable Testers perform the Session within a reasonable period. However, User Sense cannot guarantee that the Session will be performed by a suitable Tester.
In case of a Session as meant in the previous paragraph is not performed by the amount of Testers as agreed upon in the Service Agreement within one (1) month after conclusion of the Service Agreement or, in the opinion of User Sense, is not performed properly, the paid Credits by Customer will be returned (pro-rata, dependent on the amount of Tester that did performed the Session in relation to the agreed upon amount of Testers) to the balance of Customer, unless such a solution cannot be deemed reasonable under the circumstances. In that case Parties will consult to reach an agreement.
In case of a Session that is moderated, and to be conducted at a certain agreed upon moment, or in case of any appointment at an agreed upon moment, User Sense will use best efforts to have its own Testers, Observers and/or Moderators be present at the moment of the Session, insofar applicable. However, Customer cannot cancel such a Session (whether it be a Session concerning a Test or any other meeting that will take place on an agreed upon time and place) within forty-eight (48) hours of the start of the Session without paying reimbursement. Customer will be due 75% of the amount owed in case of a cancellation by Customer or its End-users within forty-eight (48) hours of the start of the Session. In deviation from the above, in case a Session in relation to the recruitment service of User Sense not being executed via the Platform is to be concluded on-site, Customer cannot cancel such a Session within five (5) working days of the start of the Session without paying reimbursement. Customer will be due 75% of the amount owed in case of a cancellation by Customer or its End-users within five (5) working days of the start of the Session. In case a Tester, Observer and/or Moderator of User Sense for any reason cannot attend the Session, Parties will consult to decide whether the Session will be rescheduled, or the Credits will be returned to the balance of Customer.
In case the Session or appointment as meant in the previous paragraph exceeds the agreed upon Session length by 25% or more, User Sense will have the right to additionally invoice the Customer, based on the time that the agreed upon Session length is exceeded.
Customer must, within one (1) business day after the end of a Session, provide notice to User Sese, in case a Tester of User Sense:
a. is not present at the agreed upon time and location (whether online or on-site) for a Session;
b. does not meet the agreed upon criteria;
c. did significantly not meet the quality criteria that can reasonably be expected from the Tester.

Article A.8. Performance of Services: recruitment and research service

In case the Service Agreement relates to the recruitment of Testers, User Sense shall use best efforts to find Testers that fit within the criteria that Customer provided. However, User Sense cannot provide any guarantees. In case User Sense is not able to find the suitable Tester(s), Parties will consult. User Sense may then, at its own discretion, decide whether to return the relevant Credits or not.
In the situation as mentioned in the last paragraph, User Sense will contract the Tester (and thus the Tester will not qualify as an End-user), unless agreed otherwise in Writing. This means that User Sense will be responsible for making arrangements with Tester, and for the payment of Tester, unless agreed otherwise in Writing.
In case the Service Agreement relates to the recruitment of Testers, or a research service, Customer will provide User Sense with the recruitment criteria and/or the research data. User Sense is not obliged to take into account any changes to the criteria sent by Customer after confirmation, or after the start of the recruitment or research by User Sense.
For the avoidance of doubt, the Service Agreement that relates to the recruitment Services and/or research service cannot be terminated (in Dutch: opzeggen) in the interim.

Article A.9. Additional service

If Customer requests a service that falls outside the agreed upon Services, User Sense can make an offer regarding this request. User Sense will only perform the service after Customer has accepted the offer.
For additional work of which User Sense can demonstrate that it is reasonably necessary for the provision of the Services, or which reasonably follows from the instructions of Customer, User Sense does not require permission. Customer will pay the hours required for the additional work at the hourly rate of User Sense at that time. Other costs incurred can also be charged.

Article A.10. Privacy

User Sense will process any personal data in relation to the Services in accordance with its privacy statement, which can be found on the Website or here.
The fulfilment of any Service Agreement may entail the processing of personal data. In the event that personal data are processed, module D regarding the processing of personal data is applicable.

Article A.11. Intellectual Property

The Platform and the App, as well as all related materials and information, is the Intellectual Property of User Sense (or its licensors). None of these items may be copied or used without the prior written permission of User Sense, except and to the extent permitted by mandatory law.
Insofar applicable, Customer provides User Sense a non-exclusive, non-revokable, unlimited, sublicensable, perpetual license to use all materials that are (partly) created by Customer and/or its End-Users in the course of the provision of Services (for example: notes, transcription and video material) for the provision of the Services, and all other business uses.
Insofar applicable, User Sense grants Customer a non-exclusive, non-sublicensable, perpetual license to use the output of the Services (for example: notes, transcription and video material) for its own internal purposes or the internal purposes of its End-user. These materials may not be shared or disclosed by Customer or End-users to third parties, without explicit prior Written approval by User Sense. Customer can download these materials via the Platform.
Customer hereby grants User Sense permission to use the name and logo of Customer and, if applicable, its End-user that is a Client on User Sense’s Websites. Customer can request User Sense to remove these names and logos. Customer indemnifies User Sense for all claims of third parties regarding the use of these names and logos, including the use of the name and logos of its End-users.
Customer and End-users are not permitted to access the source code of the Platform or the App, either during or after the duration of any agreement.

Article A.12. Confidentiality

Parties shall refrain from disclosing or using for any other purpose than within the scope of any agreement between Parties, any trade secrets and other information of the other Party (including information provided by End-users) that has been designated as confidential or the confidential nature of which is known or can reasonably be deemed to be known by the other Party. The Tests and all information regarding the Tests and Sessions, including any materials (such as but not limited to videos and reports) that are created in relation to the Tests and Sessions shall in any event qualify as confidential information, unless agreed otherwise in Writing.
In deviation from the foregoing, User Sense may use the Tests and all information regarding the Tests and Sessions, including any materials (such as but not limited to videos and reports) that are created in relation to the Tests and Sessions for all its business purposes. Customer may use the Tests and all information regarding the Tests and Sessions, including any materials (such as but not limited to videos and reports) that are created in relation to the Tests for its own internal business purposes, and for its Clients, provided that these materials are not disclosed to third parties.
In addition, Parties accept the duty to observe strict secrecy with respect to all information regarding the activities and organization of the other Party, except as far as such information was already part of the public domain without any involvement of the other Party.
Parties must, regarding the information as meant in paragraph 1 and 2 of this article:
a. keep the information strictly confidential;
b. not disclose the information to any third person or party without the prior Written consent by the other Party;
c. use the same degree of care to protect the confidentiality of the information received from the other Party as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
d. act in good faith at all times in relation to the information.
Parties may disclose the information as meant in paragraph 1 and 2 of this article to its officers, employees, professional advisers, insurers, agents, subcontractors and End-Users who have a need to access the information for the performance of their work with respect to any agreement between Parties, and who are bound by a Written agreement or professional obligation to protect the confidentiality of the information.
This article imposes no obligations upon User Sense with respect to information that:
a. is known to User Sense before disclosure under the agreement between Parties and is not subject to any other obligation of confidentiality;
b. is or becomes publicly known through no act or default of User Sense; or
c. is obtained by User Sense from a third party in circumstances where User Sense has no reason to believe that there has been a breach of an obligation of confidentiality.
Customer is responsible for the compliance of its End-Users of the confidentiality provisions they are bound to on the grounds of these General Terms and Conditions.
The restrictions in this article do not apply to the extent that any information is required to be disclosed by any law or regulation or by any judicial or governmental order or request.
The provisions of this article continue to apply even after an agreement between Parties has ended.

Article A.13. Liability

The liability of User Sense for damages or other claims as a result of a failure in the performance of any agreement between Parties (including any guarantees included therein), a wrongful act or otherwise, is limited per event (whereby a series of successive events counts as one event) to the amount that the Customer used Credits for, for the purchase of Services (Credits expressed in the amount in the relevant currency exclusive of VAT) in the twelve (12) months prior to the event that caused the damage.
Without prejudice to the above, User Sense is explicitly not liable for indirect damages. Indirect damages in this case includes: loss of profit, damage due to loss of data, missed savings, reduced goodwill and damage due to business interruption.
Unless the performance is permanently impossible, the liability of User Sense due to an attributable failure in the performance of any agreement between Parties arises only if the Customer gives User Sense immediate and proper notice of default in Writing, specifying a reasonable period to remedy the failure, and User Sense continues to attributably fail in the fulfillment of its obligations after that term. The notice of default must contain as detailed a description as possible of the failure, so that User Sense is able to respond adequately.
Customer indemnifies User Sense for all claims by third parties (including but not limited to a Client that is an End-User of Customer), in respect of compensation for damages, costs or interest, related to the use of the Services by Customer or its End-users.
Any limitations of liability shall not apply to the extent that the damage or loss is the result of willful misconduct or deliberate recklessness on the part of User Sense management or managerial staff.

Article A.14. Force majeure

Parties cannot be obliged to fulfill any obligation under any agreement between Parties if fulfillment is prevented as a result of force majeure. Nor can a Party be held liable for any damage resulting from this.
The following situations will in any case constitute force majeure: power failures, internet failures, failures in the telecommunications infrastructure, network attacks (including (d)dos attacks), attacks by malware or other malicious software, internal disturbances, mobilization, war, terror, strikes, and export barriers, supply stagnation, fire and flooding.
If a force majeure situation has lasted for more than ninety (90) days, both Parties shall be entitled to give notice to terminate a Service Agreement in Writing with immediate effect. The Services which in that case have been delivered by User Sense prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro rata basis. If Customer made payments in advance, User Sense will refund the payments on a pro rata basis.

Article A.15. Changes to the General Terms and Conditions

User Sense may amend the General Terms and Conditions at any time if the changes are not significant or are required by applicable mandatory law.
User Sense will endeavour to announce the changes or additions at least thirty (30) days before they take effect.
If Customer does not wish to accept a change or addition, not being a change or addition pursuant to article A.15.1 of these General Terms and Conditions, Customer may give notice to terminate (in Dutch: opzeggen) any agreement between Parties until the date the changes take effect. Use of the Services after the effective date will be regarded as acceptance of the amended or supplemented General Terms and Conditions.

Article A.16. Miscellaneous

Any agreement between User Sense and its counterparty shall be governed by Dutch law. English language words used intent to describe Dutch legal concepts only and the consequences of the use of those words in English or US law or any foreign law shall be disregarded.
To the extent not otherwise provided for in mandatory law, all disputes related to the Services or any agreement between Parties will be submitted to the competent Dutch court in the jurisdiction where User Sense is established.
The version of any communication of information as recorded by User Sense shall be deemed to be authentic, unless Customer supplies proof to the contrary.
If any provision of the General Terms and Conditions will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. In that case, Parties will determine (a) new provision(s) as a replacement, which will give shape to the intention of the original provision as much as legally possible.
Customer is not entitled to transfer the rights and obligations under any agreement between Parties to a third party, including a merger or takeover, without the written permission of User Sense.
Customer grants User Sense the right to, without requiring the express permission of Customer, transfer any agreement concluded between Parties in full, or parts thereof, to parent companies, sister companies and/or subsidiaries or to a third party in in the event of a merger or acquisition. User Sense will notify Customer if such a transfer has taken place.

Module B: Platform and App

The terms and conditions included in this module B only apply insofar that a Customer, as meant in article A.1, makes use of the Platform and/or App.

Article B.1. Right of use Platform and App

User Sense grants Customer a non-exclusive, non-sublicensable, license to use the Platform and the App for the execution of UX-research and Tests, pursuant to and in accordance with the Service Agreement. Customer is not entitled to make changes to the Platform or the App.
The right of use as referred to in the previous paragraph includes the right for Customer to allow End-users, under Customer’s responsibility, to use the Platform and the App for the execution of UX-research as agreed upon in the Service Agreement.

Article B.2. Accounts

To use the Platform or the App, Customer and/or End-users need an Account. There are different types of Accounts, each with different (access) rights.
Customer can register on the Website in order to gain access to the Platform and can chose its own login information (username and password). After registration, Customer gets access to a Client Account. Customer can contact User Sense to have the Account manually transferred to an Agency Account by User Sense.
A Customer can invite End-users to make use of the Platform and/or App via an Account. The Customer is responsible for the use of the Platform and/or the App by End-users, and can manage their Accounts. User Sense may assume that all actions undertaken from those Accounts after logging in is authorized and supervised by Customer. This means that Customer is liable for these actions, unless and until Customer has notified User Sense that an unauthorized person knows the login details.
Customer and End-users must secure access to the Account(s) by protecting the username and password against third party access. In particular, Customer must keep the username and password strictly confidential. If Customer provides access to End-users, Customer remains responsible towards User Sense for the login information and the use of the Platform by the End-users.
If login details for an Account are lost or leaked, Customer will immediately take all measures that are reasonably necessary and desirable to prevent misuse of the Account. These measures may include changing the password or blocking the Account. Customer shall also notify User Sense immediately, so that any additional measures can be taken to prevent abuse of the Account.

Article B.3.Use of Platform and App

Customer is responsible for the use of the App and Platform by its End-users. Customer will in particular see to it that its End-users use the Platform and App in accordance with the terms of use of module C, which are applicable when using the Platform and/or the App.
User Sense may recover from Customer any loss and/or damage sustained as a result of violations of the rules under this article. Customer indemnifies User Sense against any and all third-party claims pertaining to loss and/or damage arising from a violation of the rules under this article.
Customer and its End-users must not:
a. use the Platform or the App in any way that is unlawful, illegal, fraudulent or harmful;
b. use the Platform or the App in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
c. use the Platform or the App to request contact details or any other personal data of Testers; or
d. without prior Written permission of User Sense, use any other external tool to complete a Test or Session which is supposed to be completed on the Platform and/or App.
If in the opinion of User Sense, the continued functioning of the systems or network of User Sense or third parties is under threat of being damaged or jeopardized, User Sense may take all steps it deems reasonably necessary to end or avert such damage or jeopardy.
User Sense is authorised at all times to report any criminal acts that are discovered and will cooperate with duly authorised orders and commands. In addition, User Sense is authorised to provide the name, address, IP address and other data identifying the Customer/an End User to a third party who has complained that Customer/an End-user of the Services has violated its rights or these General Terms and Conditions, on the condition that the requirements originating from case law are met.
Customer may not make recordings of any Tool (including but not limited to the execution of Tests) using external tools. Customer must see to it that its End-users also comply with this restriction.
In case Customer or an End-user does not comply with the terms of this article, or otherwise, in the opinion of User Sense, acts inappropriately in connection to the Platform or the App, User Sense has the right to suspend or permanently block access to an Account.
Before suspending or blocking access to an Account, User Sense will warn Customer or an End-user in case of an (alleged) violation of the terms of this article, or in case of inappropriate behaviour. If Customer or End-user does not, within a reasonable period, stop acting in violation of this article, or does not stop displaying inappropriate behaviour, User Sense can suspend or permanently block access to the Account. The foregoing does not apply if the nature and/or severity of the act justifies a suspension or blocking without warning.

Article B.4. Responsibilities Customer and End-user

User Sense is not responsible for the Tester that is an End-user, including the performance of Tests by and the output of that Tester.
In case Customer transferred Credits to a Client, this Client can use the Platform to activate Tools. For the avoidance of doubt, Customer is responsible for the use of the Platform by the End-user, and thus for the activation of Tools and the use of Credits by End-User. This means that the activation of a Tool by an End-user that did not purchase the Credits themselves and thus does not qualify as a Customer does not constitute a Service Agreement between End-user and User Sense. In this case, the Customer connected with and responsible for the End-user is deemed to have concluded the Service Agreement with User Sense.
Payment of Tester that is an End-user of Customer is the sole responsibility of Customer.
Insofar Parties agree, payment to User Sense of the Services delivered to Agency can be done by a Client that is an End-user of Agency. In that case, Agency warrants that it has the necessary agreements and/or permissions from Client, and warrants that Client will pay the invoice subject to the terms of these General Terms and Conditions. Agency will ultimately remain responsible for a timely payment of the invoice regarding the Services.

Article B.5. Support, availability and maintenance

User Sense will provide a reasonable level of support to Customer. Customer can make support request consisting of general usage questions or complaints regarding the Platform or the App.
Customer can submit its support requests via the Platform, by using the contact form on https://www.usersense.nl/contact, by sending a message to +3197010240802 on Whatsapp, by contacting +31851300626 or by sending an email to support@usersense.io.
User Sense shall endeavour to respond to support requests within a reasonable time.
User Sense shall use reasonable endeavours to keep the Platform and App available as much as possible, but cannot guarantee an uninterrupted availability at all times.
User Sense may modify the Platform and the App to correct errors, add new functionality or improve performance. While the Parties may consult on such modifications in advance and the Customer may make suggestions, the final decision on whether or not to implement the modification will be made by User Sense.
If, in User Sense’s opinion, modifications will result in a significant change in the functionality of the Platform or the App, User Sense will endeavour to notify the Customer of the modifications in advance by email.
User Sense will endeavour to remedy any defects in the Platform or App, but is also dependent on its suppliers in this regard.
Implementing modifications and improvements may have the effect of restricting the availability of the Platform or App, User Sense will endeavour to limit the impact on Customer or End-users when performing these implementations. Emergency maintenance may be carried out at any moment and will not be announced in advance.

Module C: Terms of use of Platform and App

The terms and conditions included in this module C apply to:

End-users as meant in article A.1, which have thus not concluded a Credit Purchase Agreement with User Sense but make use of the Platform and/or the App via Customer, and under Customer’s responsibility; and
Testers that register at the Website independently from Customer, and are thus not invited by Customer to make use of the Platform and App under their responsibility.

Article C.1. Platform and App

End-user may make use of the Platform and/or the App under Customer’s responsibility, and insofar as Customer allows End-user (in accordance with the agreement(s) between Customer and User Sense) to make use of the Platform and the App.
In contrast to the above, Testers that register at the Website independently from Customer, and are thus not invited by Customer to make use of the Platform and App under their responsibility, can make use of the Platform and the App under their own responsibility, in accordance with this module and the Terms and Conditions Contracted Tester which are available at registration.
End-users and Testers as referred to above do not have to pay to use the Platform and App. For End-users, the payment regarding the use of the Platform and App is arranged between the relevant Customer and User Sense.
If End-user at any point in time concludes a Credit Purchase Agreement with User Sense, it will from that moment qualify as a Customer and will thus be bound to the terms of the other modules of these General Terms and Conditions.
The Platform and App allow End-user to conduct Tests, or to have Tests conducted.
User Sense may process the personal data of End-user and Tester. The privacy statement of User Sense can be consulted for more information. The privacy statement can be found here.

Article C.2. Account

End-user will be invited by Customer to the Platform and will get access to an Account that is linked to Customer. Customer can manage the Account of End-user.
Testers that independently register at the Website can manage their own Account, insofar their Account is not linked to a specific Customer.
End-user and Testers must secure access to their Accounts by protecting the username and password against third party access. In particular, they must keep the username and password strictly confidential.
If login details for an Account of End-user or Tester are lost or leaked, End-user or Tester will immediately take all measures that are reasonably necessary and desirable to prevent misuse of the Account. End-user or Tester shall also notify User Sense immediately, so that any additional measures can be taken to prevent abuse of the Account.

Article C.3. Terms of use

End-users and Testers must not:
a. use the Platform or the App in any way that is unlawful, illegal, fraudulent or harmful;
b. use the Platform or the App in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
c. use the Platform or the App to request contact details or any other personal data of (other) Testers; or
d. without prior Written permission of User Sense, use any other external tool to complete a Test or Session which is supposed to be completed on the Platform and/or App.
If in the opinion of User Sense, the continued functioning of the systems or network of User Sense or third parties is under threat of being damaged or jeopardized, User Sense may take all steps it deems reasonably necessary to end or avert such damage or jeopardy.
User Sense is authorised at all times to report any criminal acts that are discovered and will cooperate with duly authorised orders and commands. In addition, User Sense is authorised to provide the name, address, IP address and other data identifying the End-user or Tester to a third party who has complained that End-user or Tester has violated its rights or these General Terms and Conditions, on the condition that the requirements originating from case law are met.
End-users or Testers may not make recordings of any activities on the Platform and/or App (including but not limited to the execution of Tests) using external tools.
In case End-user or Tester does not comply with the terms of this article, or otherwise, in the opinion of User Sense, acts inappropriately in connection to the Platform or the App, User Sense has the right to suspend or permanently block access to the Account.
Before suspending or blocking access to an Account, User Sense will warn Tester or an End-user in case of an (alleged) violation of the terms of this article, or in case of inappropriate behaviour. If Tester or End-user does not, within a reasonable period, stop acting in violation of this article, or does not stop displaying inappropriate behaviour, User Sense can suspend or permanently block access to the Account. The foregoing does not apply if the nature and/or severity of the act justifies a suspension or blocking without warning.

Article C.4. Support, availability and maintenance

User Sense will provide a reasonable level of support to End-Users and Testers. End-users and Testers can make support request consisting of general usage questions or complaints regarding the Platform or the App.
End-Users and Testers can submit their support requests via the Platform, by using the contact form on https://www.usersense.nl/contact, by sending a message to +3197010240802 on Whatsapp, by contacting +31851300626 or by sending an email to support@usersense.io.
User Sense shall endeavour to respond to support requests within a reasonable time.
User Sense shall use reasonable endeavours to keep the Platform and App available as much as possible, but cannot guarantee an uninterrupted availability at all times.
User Sense may modify the Platform and the App to correct errors, add new functionality or improve performance.
User Sense will endeavour to remedy any defects in the Platform or App, but is also dependent on its suppliers in this regard.
Implementing modifications and improvements may have the effect of restricting the availability of the Platform or App, User Sense will endeavour to limit the impact on End-users and Testers when performing these implementations. Emergency maintenance may be carried out at any moment and will not be announced in advance.

Article C.5. Intellectual Property

The Platform and the App, as well as all related materials and information, is the Intellectual Property of User Sense (or its licensors). None of these items may be copied or used without the prior written permission of User Sense, except and to the extent permitted by mandatory law.
Insofar as is applicable, and such a license is not validly granted through the involvement of Customer, End-user provides User Sense a non-exclusive, non-revokable, unlimited, sublicensable, perpetual license to use all materials that are (partly) created by End-Users in the course of the provision of Services (for example: notes, transcription and video material) for the provision of the Services, and all other business uses. To the extent applicable and permitted by law, End-user hereby waives any possible applicable (statutory) right of objection, and grants User Sense permission to use the images and video material created through the Platform and/or App for business use.
End-user hereby grants User Sense permission to use the name and logo of End-user on User Sense’s Websites. End-user can request User Sense to remove these names and logos. End-user indemnifies User Sense for all claims of third parties regarding the use of these names and logos.
End-users and Testers are not permitted to access the source code of the Platform or the App, either during or after the duration of any agreement.

Article C.6. Confidentiality

User Sense and End-user shall refrain from disclosing or using for any other purpose than within the scope of any agreement between Customer and User Sense, or User Sense and Tester in case of a Tester that is not an End-user, any trade secrets and other information of the other party that has been designated as confidential or the confidential nature of which is known or can reasonably be deemed to be known by the other party. The Tests and all information regarding the Tests and Sessions, including any materials (such as but not limited to videos and reports) that are created in relation to the Tests and Sessions, shall in any event qualify as confidential information, unless agreed otherwise in Writing.
In deviation from the foregoing, User Sense may use the Tests and all information regarding the Tests and Sessions, including any materials (such as but not limited to videos and reports) that are created in relation to the Tests and Sessions for all its business purposes.
In addition, parties accept the duty to observe strict secrecy with respect to all information regarding the activities and organization of the other party, except as far as such information was already part of the public domain without any involvement of the other Party.
User Sense and End-user must, regarding the information as meant in paragraph 1 and 2 of this article:
a. keep the information strictly confidential;
b. not disclose the information to any third person or party without the prior Written consent by the other party;
c. use the same degree of care to protect the confidentiality of the information received from the other party as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
d. act in good faith at all times in relation to the information.
User Sense and End-user may disclose the information as meant in paragraph 1 and 2 of this article to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the information for the performance of their work with respect to any agreement between Parties, and who are bound by a Written agreement or professional obligation to protect the confidentiality of the information.
This article imposes no obligations upon User Sense with respect to information that:
a. is known to User Sense before disclosure under the agreement between Parties and is not subject to any other obligation of confidentiality;
b. is or becomes publicly known through no act or default of User Sense; or
c. is obtained by User Sense from a third party in circumstances where User Sense has no reason to believe that there has been a breach of an obligation of confidentiality.
The restrictions in this article do not apply to the extent that any information is required to be disclosed by any law or regulation or by any judicial or governmental order or request.
The provisions of this article continue to apply even after the use of the Platform and/or App has stopped.

Article C.7. Liability

In relationship with End-user, User Sense is not liable for damages or any other claims resulting from a failure in the performance of the Agreement (including any guarantee obligations contained therein), a wrongful act or otherwise, unless in case of intent or deliberate recklessness on the part of User Sense’s management. The liability between the Customer under whose responsibility End-user makes use of the Platform and/or the App and User Sense is governed by the other modules of these General Terms and Conditions, and if applicable, any other agreements between those parties.

Module D: Processing of personal data

Article D.1. General provisions

When executing the Agreement, User Sense can process personal data on behalf of Customer. Unless otherwise agreed, in such a case this Module shall serve as a (sub)processor agreement. If a separate (sub)processor's agreement is concluded between the parties, it shall take the place of this appendix.
This Module is inextricably linked to the General Terms and Conditions. All definitions from the General Terms and Conditions have the same meaning in this Module. The legal preconditions from the General Terms and Conditions (for example within the framework of liability) shall therefore apply in full. In the event of contradictions, the provisions of this Appendix shall prevail.
If personal data is processed in the execution of the Service Agreement, Customer must be considered a controller if it determines the purpose and means of the processing. User Sense should be considered a processor. If User Sense processes personal data on behalf of a processor, User Sense is to be considered a sub-processor.
The terms relating to the processing of personal data (including but not limited to personal data, data subject, processing, controller, processor and personal data breach) as used throughout this Data Processing Agreement will have the same meaning as laid down in the General Data Protection Regulation (hereinafter: "GDPR").

Article D.2. Processing of personal data

User Sense shall only process the personal data for the execution of the Service Agreement, plus those purposes that are reasonably related to it or determined with that further agreement of Customer. User Sense is permitted to use the data in anonymized form for analysis and quality purposes.
The purposes of the processing, as well as the categories of data subjects and the types of personal data processed in the provision of the Services, are further described in the Service Agreement.
User Sense has no independent control over the purpose and means of processing personal data. User Sense does not take independent decisions on the receipt and use of the personal data, the disclosure to third parties and the duration of storage of personal data.

Article D.3. Obligations of parties

The parties will each ensure compliance with the applicable laws and regulations regarding the protection of personal data, including in any case the GDPR.
User Sense shall inform Customer, upon Customer's explicit request, of the measures it has taken regarding compliance with the obligations of this Module.
User Sense's obligations under this Module also apply to persons processing personal data under the authority of User Sense, including employees in the broadest sense of the word.
Customer guarantees that the content, the use and the order to process the personal data are not unlawful and do not violate any right of third parties and indemnifies User Sense against all claims of third parties related to this.
User Sense will support Customer in performing a Data Protection Impact Assessment (hereinafter: "DPIA") or prior regulatory consultation, should this be required by law. The associated costs shall be borne by Customer.
User Sense shall promptly inform Customer if, in User Sense's opinion, an instruction from Customer violates the GDPR.

Article D.4. Transfer of personal data

User Sense may process personal data in countries within the European Economic Area (hereinafter: "EEA"). Transfer to countries outside the EEA is also permitted, provided that the regulations of the GDPR are observed.
User Sense will inform Customer, upon Customer's explicit request, of the country or countries in which personal data are processed.

Article D.5. Involvement of Subprocessors

Customer authorizes User Sense to involve the third parties (hereinafter "Subprocessors") when processing personal data, in compliance with the GDPR and other applicable laws and regulations.
If User Sense intends to engage a new sub-processor, it shall inform Customer in writing. Customer has the right to object to the engagement of new sub-processor(s) in writing with reasons within two (2) weeks after notification. If Customer does not object within this period, it will be deemed to agree to the engagement of the new subprocessor(s).
If Customer objects to engaging a subprocessor, User Sense may not be able to (continue to) provide the Services in full. In such a case, the parties will consult to find a suitable solution. If parties cannot find a solution, User Sense has the right to still engage the subprocessor and Customer has the right to terminate the Service Agreement by and at the latest until the date on which the new subprocessor is engaged.
User Sense shall ensure that sub-processors engaged take on the same or similar obligations as agreed between Customer and User Sense in this Module. In case of non-compliance with these obligations, User Sense itself shall be liable to Customer as if it had committed the errors itself.

Article D.6. Security

User Sense will take appropriate technical and organizational measures with regard to the processing of personal data to be carried out in order to protect them against loss or against any form of unlawful processing (such as unauthorized access, impairment, modification, or provision of personal data).
Customer only makes personal data available to User Sense if it has ensured that appropriate security measures have been taken.
Although User Sense makes every effort to prevent loss or unlawful processing of personal data, User Sense cannot guarantee that the security measures taken are effective under all circumstances.

Article D.7. Personal data breaches

Customer is itself responsible for reporting a personal data breach (as referred to in Article 4 (12) of the GDPR, also called "personal data breach") to the relevant regulator and, in the case of a high risk, to the data subjects whose personal data has been leaked. In order to enable Customer to comply with this legal obligation, User Sense shall notify Customer without unreasonable delay in the event of a data breach.
User Sense's obligation to report to Customer includes in any case reporting the fact that there has been a data breach as well as, as far as known to User Sense, the information referred to in article 33 section 3 GDPR. If User Sense does not have all the information referred to in this article, it shall still collect it as soon as possible and make it available to Customer.
If required by law and regulations, User Sense will cooperate in informing the relevant supervisors and the persons concerned whose personal data has been leaked.

Article D.8. Rights of data subjects

In the event that a data subject wishes to exercise one of his or her legal rights and addresses the request to User Sense, User Sense will forward this request to Customer. Customer will then take care of handling the request. User Sense may inform the data subject of the forwarding of the request.
In the event that a data subject makes a request to exercise one of his or her legal rights to Customer, User Sense shall, if Customer so requests, provide reasonable cooperation if Customer cannot handle the request independently. Any associated costs shall be borne by Customer.

Article D.9. Confidentiality

All personal data that User Sense receives from Customer or that User Sense itself collects within the framework of the Service Agreement, is subject to a duty of confidentiality towards third parties.
The confidentiality obligation referred to in the previous paragraph shall not apply to the extent that Customer has given express consent to provide the personal data to third parties, if providing the personal data to third parties is necessary in the context of implementing the Service Agreement or this Module, or if there is a legal obligation or court order to provide the personal data to a third party.

Article D.10. Audits

Customer shall have the right to have audits performed by an independent expert third party bound by secrecy to verify compliance with User Sense's obligations under this Module. The costs for this, including the reasonable costs incurred by User Sense during the audit, shall be borne by Customer.
The audit referred to in the previous paragraph will only go ahead if Customer has requested the possible similar audit reports already present at User Sense, assessed them and comes up with reasonable arguments that still justify an audit initiated by Customer. An audit will be justified if the reports present at User Sense do not or insufficiently provide conclusive information about User Sense's compliance with this Module.
User Sense shall cooperate with the audit and provide all information reasonably relevant to the audit, including supporting data such as system logs, and employees as timely as possible and in any event within a reasonable period of time.
The audit initiated by Customer shall take place no earlier than at least two (2) weeks after announcement by Customer. The parties will agree on the exact date and time of the audit.
Customer may audit User Sense no more than once per year unless there is a concrete and demonstrable suspicion of non-compliance by User Sense with the agreements in this Module.
The findings as a result of the audit conducted will be reviewed by the parties in mutual consultation and, as a result, may or may not be implemented by one of the parties or by the parties jointly.

Article D.11. Duration and termination

In the event of termination of the Service Agreement, User Sense shall, without unreasonable delay, at the request and expense of Customer, unless any legal obligation opposes this, return to Customer the personal data of Customer stored on the systems of User Sense, or delete them as soon as possible.