Terms and Conditions of Business for delivery of usability services
Whatusersdo Limited is a Company Registered in England under Company Number 06778056 whose Registered Office is at The Kiln, Hoults Yard, Walker Road, Newcastle Upon Tyne, NE6 1AB, United Kingdom ('the Company').
These terms and conditions of business form the contract between the Company and the Client. These terms and conditions will prevail over any other terms and conditions between the Company and the Client whether implied by law; by custom and practice or previous course of dealing in any previous contractual relationship that may exist between the Company and the Client.
The Client wishes to receive the Services of the Company, and the Company has the skills, background and experience in providing the Services and is willing to provide the Services all subject to the provisions of these terms and conditions of business.
NOW IT IS AGREED as follows:
In these terms and conditions of business the following words shall have the following meanings:
'Services' means the Company using a pool of testers ('the Tester(s)') to complete the tasks specified by the Client on the online order form completed by the Client. The Company will record the screens and spoken thoughts of its Tester(s) as the Tester(s) attempts to complete the tasks specified by the Client. These spoken thoughts will be made available to the Client as an online video.
'Completion Date' means the date or dates specified in the online order form, if any, or such other date as the Parties may subsequently agree by exchange of e-mails.
'Price' means the total amount specified in the order form or as outlined in a written agreement. The Price is subject to V.A.T at the rate prevailing at the date payment is taken online by credit or debit card.
2 The Services
2.1 The Company shall provide the Services to the Client subject to these terms and conditions of business.
2.2 Prior to the commencement of the Services, the Client shall submit to the Company a completed online order form detailing the Services to be provided. The online order form shall specify what the Client wants to be tested and which specific tasks are to be completed by the Tester(s).
2.3 The Client acknowledges and accepts that the Company reserves the right in its absolute discretion to cancel the Agreement between the Company and the Client forthwith should there be any matter not previously made known to the Company by the Client that may affect the Price or the quality of the service provision or the ability of the Company to provide the Service.
2.4 Where the Company cancels the Agreement in accordance with clause 2.3, the Company may refund to the Client, where applicable and in the Company's absolute discretion, all monies paid by the Client for the provision of the Services under this Agreement.
2.5 Where the Services require any licence; consent; or approval (for example but not limited to the approval of any software company or web or graphic designer), then it is the responsibility of the Client to obtain any such consent or approval and, on request, to provide a copy of the same to the Company prior to commencement of the Services. If the Company has not received satisfactory evidence that any of the aforementioned has been obtained, then the Company may, in its absolute discretion, cancel this Agreement without notice and without any obligation to the Client whether financial or otherwise.
2.6 The purchase of multiple Test Credits, whether as 'Test Packs', 'Insight Packs', 'Test Credits' or any other special offer that may from time to time be offered to the Client, consists of an agreed number of Test Credits being added to the Client's account in advance of commencement of services. These Test Credits are only valid for a period of 12 months from the date of order.
3 Performance of the Services
3.1 The Company shall use best endeavours to complete the Services as quickly as possible. However it is agreed that time is not of the essence for the provision of the Services and the provision of the Services is subject always to the availability of the Company's Tester(s), and the quality and clarity of the instructions given by the Client.
3.2 Time shall not be of the essence:
3.2.1 for any times for when the Services are to be performed, whether given or agreed to by the Company; or
3.2.2 for the length of time that any of the Services are to take, whether specified in the online Order Form or otherwise.
4 Fees and payment
4.1 For all online orders the Client agrees to pay the Company the full amount for the Services by credit or debit card online prior to the commencement of the Services.
4.2 For invoiced orders the Client agrees to pay the Company the full amount for the Services in line with the credit terms stated on the invoice.
4.3 All amounts stated for the Services are exclusive of VAT and/or any other applicable taxes which shall be charged in addition at the rate in force at the date any payment is required from the Client.
4.4 If payment of the Price is rejected, cancelled or recalled by the Client's bank, building society or other financial services provider or delayed beyond the credit terms as outlined on the Company's invoice and work has commenced for the Client, the Company will be entitled:
4.4.1 to charge interest on the outstanding amount at the rate of 5% per annum above the base lending rate of Bank of Scotland plc, accruing daily;
4.4.2 not to provide any further Services or part of the Services and to revoke access to the Client's results account
4.5 If payment of the Price is rejected, cancelled or recalled by the Client's bank, building society or other financial services provider or delayed beyond the credit terms as outlined on the Company's invoice and work has not commenced for the Client, the Company will be entitled:
4.5.1 to not to provide any further Services or part of the Services and to revoke access to the Client's account
5 The Client's obligations
5.1 The Client acknowledges and agrees that for the Company to be able to provide the Services the Client shall, strictly for the purposes of performance of this contract:-
5.1.1 co-operate with the Company and the Company's employees and sub-contractors as the Company reasonably requires;
5.1.2 provide to the Company such information and documentation as the Company reasonably requires;
5.1.3 provide all data, materials and if appropriate for the performance of the Services, full access to the Client's website and any associated applications.
5.2 The Client agrees at all times to use the Services only for actual testing purposes. Should the Client use the Services for any unlawful, illegal or immoral purposes, including but not limited to, fraud and phishing, then the Company reserves the right in its absolute discretion to immediately disconnect the account; cease to provide any further service and to report such activity to the Police.
6 Protection of Confidential Information
6.1 Each Party ('Receiving Party') shall keep the confidential information of the other party ('Supplying Party') confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for performing the Receiving Party's obligations under the Agreement.
6.2 The Obligations of clause 6.1 shall not apply to any information which:-
6.2.1 was known or in possession of the Receiving Party before it was provided to the Receiving Party by the Providing Party;
6.2.2 is, or becomes, publicly available through no fault of the Receiving Party;
6.2.3 is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
6.2.4 was developed by the Receiving Party who had no direct access to, or use or knowledge of the Confidential Information supplied by the Supplying Party; or
6.2.5 is required to be disclosed by order of a court of competent jurisdiction.
6.3 The Company retains the rights at all times to remove any test video and require the Client to delete immediately on request any locally held copies of the same, should the Company in its absolute discretion believe that personally sensitive information about one of the testers has been revealed.
6.4 This clause 6 shall survive termination of this Agreement for a period of 6 years.
7 Warranties, liability and indemnities
7.1 The Company warrants that it will use utmost care and skill in performing the Services and to a standard which conforms to generally accepted industry standards and best practices.
7.2 If any part of the Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the Client (if the request is given within 6 months of the Completion Date), the Company will re-perform the relevant part of the Services, always subject to Clause 7.4 and Clause 7.5 below.
7.3 The Company expressly does not warrant that any result or objective whether stated in this Agreement or not shall be achieved, be achievable or be attained at all or by a given date, or any other date.
7.4 Except in the case of death or personal injury caused by the Company's negligence, the Company's liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Price paid to the Company under this Agreement. The provisions of this Clause 7.4 shall not apply to Clause 7.6.
7.5 Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this Clause 7.5 shall not apply to Clause 7.6.
7.6 The Client shall indemnify and hold harmless the Company from and against all claims and losses arising from loss, damage, liability, injury to the Company, or the Company's employees, and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Company by the Client, within or without the scope of this Agreement. 'Claims' shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and 'Losses' shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
7.7 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
The Company will use all reasonable endeavours to complete the Services under the Agreement. If the Company is unable to do so for reasons beyond its reasonable control then the Company may terminate the Agreement immediately.
9 Cancellation Fees
Where the Client cancels this Agreement before the Services have been commenced or completed by the Company the Client shall still be required to pay the full Price for the Services agreed under this Agreement. The Client shall not be entitled to any refund of the Price paid.
10.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under any Agreement without the prior written consent of the other Party. A Party may, however, assign and transfer all its rights and obligations under any Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under any Agreement.
10.3 Entire agreement
These terms and conditions of business Agreement contain the whole terms and conditions applicable to any agreement between the Parties in respect of the subject-matter of any agreement and supersedes and replaces any prior written or oral terms and conditions of business or agreements, representations or understandings between them relating to such subject-matter. The parties confirm that they have not entered into any Agreement on the basis of any representation that is not expressly incorporated into these terms and conditions of business. Nothing in these terms and conditions of business excludes liability for fraud.
No failure or delay by the Company or the Client in exercising any right, power or privilege under any Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in these terms and conditions of business are cumulative and not exclusive of any rights and remedies provided by law.
10.5 Agency, Partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
If any provision of these terms and conditions of business is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these terms and conditions of business and rendered ineffective as far as possible without modifying the remaining provisions of these terms and conditions of business, and shall not in any way affect any other circumstances of or the validity or enforcement of any Agreement.
In these terms and conditions of business unless the context otherwise requires:
10.7.1 words importing any gender include each gender;
10.7.2 words importing the singular number include the plural number and vice versa;
10.7.3 words importing persons include firms, companies and corporations and vice versa;
10.7.4 references to numbered clauses are references to the relevant clause in these terms and conditions of business;
10.7.5 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
10.7.6 the headings to the clauses and paragraphs of these terms and conditions of business are not to affect the interpretation;
10.7.7 where the word 'including' is used in these terms and conditions of business, it shall be understood as meaning 'including without limitation'.
10.8 Law and jurisdiction
The validity, construction and performance of these terms and conditions of business and any Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
10.9 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 these terms and conditions of business and any Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
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