General Terms and Conditions | RapidUsertests
1. Subject matter of the contract
1.1 The following General Terms and Conditions (“GTC”) apply to all legal transactions of Userlutions GmbH (“UL”) with its contractual partners (“customers”) who use the offers and services at www.rapidusertests.com (in particular usability tests).
1.2 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that UL has expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if UL performs services for the customer unconditionally in the knowledge of the customer’s general terms and conditions.
1.3 Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.4 Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the person making the declaration, remain unaffected.
1.5 These GTC shall also apply to all future business relations with the customer, even if they are not expressly agreed again. The GTC shall only apply if the customer is an entrepreneur (§ 14 German Civil Code / BGB), a legal entity under public law or a special fund under public law.
2. Conclusion of contract
2.1 UL’s offers are subject to change and non-binding.
2.2 The customer’s order is deemed to be a binding contractual offer. Unless otherwise stated in the order, UL is entitled to accept this contractual offer within seven (7) days after its receipt by UL. UL will usually accept the contractual offer within one (1) working day.
2.3 Acceptance may be declared either in writing (e.g. by means of an order confirmation) or by the performance of services by UL.
3. Contractual services of UL
3.1 UL provides services in the area of usability testing (e.g. websites, apps or digital prototypes). This may include, for example – depending on the product – the provision of usability tests in the form of tester videos, quantitative analyses of use (e.g. duration until task completion) and the evaluation of surveys of test persons (together “work results”). The detailed description of the services to be provided results in particular from UL’s online offer at www.rapidusertests.com.
3.2 UL’s performance is deemed to have been rendered when the work results have been made available to the customer online, e.g. by e-mail or by a link for access in the customer account. The access or download of the work results is not necessary for performance. Unless otherwise agreed (e.g. within the scope of credits or a premium account), the work results shall be kept available for the customer for one year, beginning with the first time UL makes them available. This shall not apply if the contractual relationship is terminated; in this case the work results shall be made available until the time of termination of the contract.
3.3 The basis for the performance of the service is the information provided by the customer within the order processing (e.g. test instructions or the URL to be tested). Subsequent changes require the express consent of UL, which may be subject to the customer bearing any additional costs incurred.
3.4 UL is entitled to use third parties as vicarious agents or assistants (e.g. testers) for the performance of services.
3.5 UL does not warrant increased site usage and/or increased orders or sales as a result of the deliverables or their implementation. Further, the data contained in the deliverables is based on individual sample surveys; it is subject to free interpretation.
3.6 UL reserves the right to use the customer’s e-mail address to inform him about its own similar goods or services (§ 7 para. 3 German Competition Law / UWG, Art. 6 para. 1 sent. 1 lit. f) GDPR). UL points out to the customer that he can object to receiving direct advertising as well as data processing for the purpose of direct advertising at any time without stating reasons, e.g. by sending an e-mail to datenschutz@userlutions.com.
4. Rights of use
4.1 All rights to the work results (e.g. videos, concepts, analyses or survey results) are the exclusive property of UL and its respective co-authors and licensors.
4.2 Unless otherwise agreed, the customer receives from UL the simple, non-transferable, temporally and spatially unlimited right to use the work results for its own purposes to the extent that this corresponds to the purpose pursued with the contract. UL does not transfer ownership of its work results, but only possession of individual (digital) copies.
4.3 Excerpts from the work results may be made publicly available by the customer, provided they contain the source reference “RapidUsertests.de (Userlutions GmbH)”.
4.4 Rights of use to work results which have not yet been paid for in full by the customer at the time of provision shall remain with UL until payment has been made in full.
4.5 Insofar as the customer participates in the work results (e.g. as a moderator), the customer grants UL the simple, irrevocable, free of charge, temporally, factually and spatially unlimited right to use and exploit its services for analysis and AI training purposes. This includes in particular the right to edit, modify and evaluate as well as the right to transfer and sublicense the rights.
5. Prices, credits and vouchers
5.1 All prices are exclusive of value added tax at the applicable rate.
5.2 The customer can acquire so-called credits by way of advance payment, which can be used in the future to remunerate UL’s services. The customer can activate the automatic rebooking of credits when the credit level is low in order to ensure that he always has sufficient credits in his customer account. Unused credits expire 12 months after purchase.
5.3 Unless otherwise agreed, payments are due immediately after invoicing. UL reserves the right to provide the services only after full payment by the customer.
5.4 Vouchers can be redeemed at www.rapidusertests.com. The following provisions apply to them in particular:
- (a) Vouchers can only be redeemed before completing the order process. Subsequent offsetting is not possible.
- (b) Only one voucher can be redeemed per order.
- (c) Vouchers are not valid for products already discounted.
- (d) Voucher balances are neither paid out in cash nor do they earn interest.
- (e) Vouchers are not transferable. UL can make payments to the respective holder with discharging effect. This does not apply if UL has knowledge or grossly negligent ignorance of the ineligibility, legal incapacity or lack of representative authority of the respective holder.
6. Obligations of the customer to cooperate
6.1 The customer’s order must be filled in completely and correctly.
6.2 If the customer creates a customer account, he is obliged to keep his password secret, to store it securely and not to make it accessible to third parties. If the password becomes known to third parties, the customer must inform UL of this immediately in writing so that the old password can be blocked and a new password can be assigned.
6.3 All websites, applications, prototypes or other content (together “content”) provided by the customer must be available in full and in good time and must meet the technical and actual requirements (e.g. type, display size and accessibility) in order to enable UL to provide the service.
6.4 The customer shall provide UL with all content required for the performance of UL’s services free of charge. All content shall be treated with care by UL, protected from access by unauthorised third parties and used exclusively for the respective provision of services.
6.5 The customer will not receive any personal data or contact information about the testers used by UL. The customer is prohibited from directly or indirectly requesting testers to disclose personal information. Should testers nevertheless provide personal information, this may not be used by the customer itself or by third parties.
6.6 The customer is prohibited from any action that is likely to impair the functionality of the systems or webpages of UL or to overload them. In particular, the customer may not use any data which, due to its type or nature, size or duplication, is suitable to endanger the existence or operation of the systems or webpages of UL or the computers of the testers.
6.7 The customer shall notify UL of a defective performance immediately, at the latest within ten (10) working days, specifying the defective performance and the respective work result. UL will then rectify the defective performance or issue the customer with an appropriate credit note.
6.8 If the customer is in default of acceptance, fails to cooperate or delays performance for other reasons for which the customer is responsible, UL shall be entitled to demand compensation for the resulting damage, including additional expenses, and shall be released from its obligation to perform for the period of the failure to cooperate.
7. Indemnity
7.1 The customer is solely liable for the content provided by the customer if the rights of third parties (in particular IP rights) are infringed by the use of the content. The customer shall indemnify UL against all claims of third parties due to such an infringement of rights upon first request and shall bear the reasonable costs of defence. The same applies to claims arising from the publication of UL’s work results by the customer.
7.2 The aim of the Usability Testing is to convey the impressions and opinions of the respective testers directly, unaltered and without comment to the customer. In order to make this possible, the customer releases UL from liability for the statements and behaviour of the testers within the scope of the tests, provided that the tester has caused the respective damage through slight negligence.
7.3 Orders initiated during a test are not legally valid under any circumstances and do not result in a legal obligation on the part of UL and/or the tester. UL, the tester and the customer or the respective shop operator do not become contractual partners under any circumstances from a tested order transaction during the test.
8. Limitation of liability
8.1 Unless otherwise stated in these GTC including the following provisions, UL shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 UL is liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, UL shall only be liable (a) for damages arising from injury to life, body or health and (b) for damages arising from the breach of a material contractual obligation (obligation the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the customer regularly relies and may rely); in this case, however, UL’s liability shall be limited to compensation for the foreseeable, typically occurring damage.
8.3 The liability provisions resulting from clauses 7.1 to 7.3 and clause 8.2 shall also apply vis-à-vis third parties as well as in the event of breaches of duty by persons (also in its favour) whose fault UL is responsible for according to the statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee has been assumed.
9. Duration and termination of the contract
If a contract is concluded for an indefinite period of time (e.g. through the customer’s registration with UL), it may be terminated by either party with a notice period of one (1) month to the end of the month. The right to terminate without notice for good cause remains unaffected by this provision.
10. Confidentiality
10.1 UL shall keep confidential all information relating to business and trade secrets and knowledge of business transactions and internal, in particular confidential matters of the customer (“confidential Information”) and agrees not to use it for any purpose other than the performance of the contract.
10.2 Confidential information does not include information for which UL can prove that (a) the information was already in the public domain, or (b) the information became in the public domain other than as a result of UL’s breach of its contractual obligations, or (c) UL was legally given the information by a third party who was authorised to disclose the information to UL, or (d) UL was already aware of the information when it was disclosed by the customer.
10.3 UL shall disclose confidential Information only to those employees and third parties (e.g. testers) directly involved in the performance of the contract and bound by confidentiality requirements of the same scope as set out herein.
10.4 The provisions of clause 10 shall apply throughout the term of the contract and for a further five (5) years after the end of the contract, irrespective of the reasons for termination of the contract.
11. Disputes
11.1 All disputes arising from or in connection with these GTC or the respective contractual relationship shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (“Deutsche Institution für Schiedsgerichtsbarkeit e.V.”) to the exclusion of the ordinary course of law.
11.2 The arbitral tribunal shall consist of one sole arbitrator. The place of arbitration shall be Berlin. The language of the proceedings shall be German.
11.3 The applicable law is the law in force in the Federal Republic of Germany. Accordingly, the German version of these GTCs shall prevail over the English version in the event of any inconsistency or contradictions.
12. Final provisions
12.1 The customer is not entitled to assign claims without UL’s consent.
12.2 Offsetting or the assertion of a right of retention by the customer is only permissible with recognised or legally established counterclaims.
12.3 If UL is prevented from fulfilling its obligations by the occurrence of unforeseeable, extraordinary circumstances which UL cannot avert despite exercising reasonable care, e.g. operational disruptions, official interventions, energy supply difficulties, pandemics, strikes or lockouts, whether these circumstances occur in the area of UL or in the area of its commissioned third party (“force majeure”), the period for performance shall be extended to a reasonable extent if the performance of the service is not rendered impossible. If the performance of the service becomes impossible due to the aforementioned circumstances, UL shall be released from its performance obligations.
12.4 UL is entitled to use customers’ name and its trademark as a reference for self-promotion, e.g. at rapidusertests.com.
12.5 UL is entitled to amend these GTC at any time. In the event of a change, UL will notify the customer thereof. The customer’s consent to the changes shall be deemed granted unless the customer objects to the change within four (4) weeks after receipt of the change notification. UL will again expressly inform the customer of this consequence of a failure to object together with the notification of change. In the event that the customer refuses to agree to the changes, the contractual relationship may be terminated by UL.
12.6 Should any provision of these GTC be wholly or partially invalid or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, another appropriate provision shall apply by way of adjustment of the contract which comes closest in economic terms to what the parties would have wanted if they had been aware of the invalidity of the provision.
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