Customer Service Agreement

This Customer Service Agreement ("Agreement") sets forth the legally binding terms and contract under which you (“Customer”) may access and use certain BetaTesting.com services and software (“Services”). BetaTesting.com products and services are provided by ErliBird Nest, Inc (hereafter described as "BetaTesting", "BetaTesting", "we", "us", "our"). The terms “You” and “Your” refer to your company or any individual representing your company that accesses BetaTesting services and software.

You agree to be bound and abide by this Agreement if you (a) sign up or use BetaTesting as a customer; or (b) pay for any BetaTesting product or service, or (c) otherwise use any of the BetaTesting software for recruiting Participants, planning, submitting, or managing Tests.

Your use of BetaTesting is contingent upon your agreement to these terms. If you do not agree to these terms, you cannot use BetaTesting Services.

The “Effective Date” of this Agreement is the earliest date that you:

(1) click a box to accept this Agreement,

(2) execute an Order that references this Agreement, or

(3) sign this Agreement directly, or

(4) use the Services.

Your “Access Term” shall be defined as the amount of time that you have access to use the BetaTesting Services.

You must have the power and authority, personally and on behalf of any company you represent, to form a legally binding contract with BetaTesting in compliance with all applicable laws and these terms of Agreement.

By using BetaTesting Services, you represent and warrant that you (a) meet the requirements defined of this "Eligibility" section; (b) agree and abide by the requirements of the terms and conditions of this Agreement; (c) are financially responsible for your use of the Website; (d) will use BetaTesting Services and deliverables in full compliance with all laws, requirements, and regulations.

The BetaTesting website allows Customer to run various types of user research and testing projects ("Tests") and allows participants to take part in Tests (“Participants” or “Testers”) for the benefit of Customer. Participants are independent individuals that use the BetaTesting website to participate in Tests. Participants are neither employees nor agents of BetaTesting.

To procure access to BetaTesting’s platform and related services, Customer may either (a) execute a written Order with BetaTesting, or (b) create an account and complete an Order online through the BetaTesting website. In each case this shall be considered an “Order”. In the absence of a formal Order form negotiated directly with BetaTesting, Customer’s use of the BetaTesting platform to complete an Order shall constitute acceptance of the applicable terms, scope, and limitations as presented on BetaTesting’s website or associated documentation.

Each Order will outline the specific parameters of the transaction, which may include: (a) the BetaTesting platform features and service levels being purchased; (b) the scope of services provided; (c) the Access Term and renewal provisions; (d) any additional integrations, usage restrictions, or special terms; (e) associated fees and payment schedules; and (f) any other mutually agreed terms relevant to the Order.

Customer may request to place Orders and make payments through a designated third party billing agent on its behalf ("Procurement Partner"). Such cases must be approved in writing by BetaTesting, upon which the Procurement Partner may submit Orders on behalf of the Customer. Use of a Procurement Partner does not relieve Customer of its obligations under this Agreement and in the event that payment is not received on time and in full, Customer shall remain obligated to pay.

The fees and payment terms associated with an Order will be indicated in the Order details. Customer is obligated to pay all fees to BetaTesting in the amount and schedule specified in the Order. All fees and payment obligations are non-cancelable and all amounts paid are nonrefundable (except cases of breach by BetaTesting). If the order or invoice does not specify payment terms and payment is not collected upfront, then the invoice is payable NET thirty (30) days from the date of the invoice.

In the event of payment disputes, Customer and BetaTesting agree to work together promptly in good faith to resolve the dispute, and Customer agrees to pay any undisputed amounts as soon as possible.

If payments due are not received on time and are not reasonably disputed in good faith within 15 days of notice of late payment from BetaTesting, BetaTesting may temporarily suspend access to the platform and services until all payments due are received. BetaTesting may charge Customer interest on late payments at the maximum rate permitted by law or 1.5% of the balance per month. BetaTesting may pursue all lawful remedies including but not limited to engaging with third party collection agencies, and Customer shall be responsible for all court costs, attorneys fees and related services charges.

BetaTesting hereby grants Customer a non-exclusive, non-transferable, non-sublicenseable, worldwide right for Authorized Users to access and use the features and functions defined in the Order solely for Customer’s own internal business purposes during the Access Term.

Each Authorized User account must be assigned to one person and may not be used by more than one individual. Customer may re-assign Authorized User accounts if one is no longer needed for a specific person.

Through the use of the Service, Customer may collect data and information ("Data Collected”) including but not limited to feedback, bugs, requests, discussions, and survey results. Customer may also provide, import, or upload data, information, text, graphics, software or other content (“Data Provided”). All Data Provided and Data Collected shall be owned by Customer, and remain Customer property.

Customer grants BetaTesting and our affiliates, subcontractors, and service providers an irrevocable, royalty-free, sublicensable license to use, copy, and create derivative works of the Data Collected and Data Provided as needed to provide the Services during the term of the Agreement.

BetaTesting may access and review Customer's use of BetaTesting Services in order to provide or improve Services for the Customer or BetaTesting service offerings. Customer grants BetaTesting an irrevocable, royalty-free, sublicensable license to compile, analyze, and use aggregated, de-identified data and results from Customer's use of the Services and Data Collected, provided that such data could not be used to individually identify Customer and Customer property. Customer also acknowledges that BetaTesting may monitor use of the Services for security, performance, operational, reporting, and improvement purposes.

All rights not expressly granted shall be retained by BetaTesting. Notwithstanding anything to the contrary, BetaTesting intellectual property (including but not limited to software code, reports, designs, methodologies, and inventions) included within the Service or deliverables shall remain the sole property of BetaTesting. Any customization, programming, or integration work performed by BetaTesting and incorporated into the Services for a particular Customer shall be wholly and exclusively owned by BetaTesting, whether or not BetaTesting receives compensation for the related work.

BetaTesting and its affiliates, including their officers, directors, employees, and agents, do not make any endorsements of the Data Collected from Participants. This includes, but is not limited to, opinions, advice, recommendations, bug reports, or other forms of output. BetaTesting disclaims all responsibility and liability for the actions or omissions of Participants, as well as for the accuracy or completeness of any Data Collected from Participants. Customers are solely responsible for any decisions they make based on such content, and any use or reliance on that information is done entirely at their own risk.

For the purposes of this Agreement, “Confidential Information" shall mean any non-public and proprietary information or data disclosed to one party by the other or incorporated in materials or products provided to one party by the other and marked, labeled or otherwise indicated to be confidential, or which would be deemed confidential to a reasonable person receiving such information.

"Authorized Representatives" means either party's affiliates, directors, officers, managers, partners, employees, contractors, agents, service providers, accountants, legal counsels, advisors, and associates.

Each party may provide Confidential Information to the other party. The receiving party agrees to retain in confidence all Confidential Information disclosed by the other and shall limit dissemination of the Confidential Information to its Authorized Representatives who are required to have access to the Confidential Information to fulfill the performance of this Agreement.

Notwithstanding anything to the contrary, Confidential Information shall not include information which (a) was publicly known or generally available at the time of disclosure through no fault of the receiving party; (b) is already rightfully known to the recipient at the time of disclosure; (c) is received from a third party without a restriction on disclosure or use; or (d) was independently conceived by the receiving party without reference to the other party’s Confidential Information. Notwithstanding anything to the contrary, each party may disclose Confidential Information to the extent required by law, provided reasonable efforts are made to notify the other party to provide them with the opportunity to seek a protective order prior to disclosure.

All Order costs and other amounts payable to BetaTesting are net of taxes and are payable in full to BetaTesting without deduction. Customer shall be solely responsible for all taxes including sales, use, ad valorem, excise, privilege, and other taxes, withholdings, VAT, tariffs, duties or any other governmental assessments, however designated. Customer shall reimburse BetaTesting immediately in the event of payment thereof by BetaTesting.

In the event that BetaTesting is required by a taxing jurisdiction to collect sales tax directly, such taxes will be separately stately on any invoices or Order forms and included as a distinct line item labeled “Sales Tax”.

Each party agrees to comply with the terms of the Data Processing Agreement, incorporated herein by reference, for the collection, processing, use, and transfer of personal data associated with this Agreement. The Data Processing Agreement can be found: https://help.betatesting.com/en/articles/12478588-data-processing-agreement

If the Customer collects any personal information from Participants, Customer is responsible for:

(a) disclosing to Participants the information they will collect, how they will use the information, and provide any other information and disclosures as required by Data Protection Law, and (b) obtaining consent for the personal data collection.

BetaTesting facilitates physical product testing for certain Customers. Customer agrees to hold BetaTesting harmless for any claims, damages, causes of action, settlements, or costs that arise from a third party or Customer pertaining to Customer’s physical product testing conducted through the BetaTesting platform and services, including any breach of privacy laws, and any fines, penalties, or costs due to the Customer’s negligence or failure to comply with this Agreement or applicable laws.

Customer agrees to:

(a) ensure all Authorized Users comply with the Agreement;

(b) take full responsibility for the accuracy, legality, and quality of Customer Property (defined below).

(c) prevent unauthorized access to the Services and promptly inform BetaTesting if any such access occurs;

(d) be liable for all activity and charges made through Authorized User accounts

(e) use the Services only as permitted by the Agreement and all applicable laws and regulations.

Customer agrees not to:

(a) without written consent from BetaTesting, request contact details from BetaTesting-sourced Participants or communicate with them outside the specific Test they were recruited for, unless the user has registered for Customer’s product and the content of communications is unrelated to testing or user research.

(b) sell, resell, rent, lease, license, sublicense, or otherwise distribute or make the Services available to others;

(c) violate any laws, regulations, third-party privacy rights, or ask any Participant to do so in connection with the Customer’s use of the Services

(d) ask Participants to agree to terms that would alter BetaTesting’s rights or change the Customer’s responsibilities under the Agreement;

(e) use the Services or Participants for the purpose of developing or improving a competing product or service or to train any AI model

(f) reverse engineer, decompile, disassemble, or try to discover the source code, underlying ideas, algorithms, file formats, or interface protocols of the Services;

(g) modify the Products or create any derivative works based on them;

(h) introduce any viruses, malware, backdoors, Trojan Horses, or other harmful code into the Services; or

(i) copy, replicate, or frame any part of the Services, including their features, functions, or user interface.

(j) attempt to circumvent the security procedures, hack, or otherwise violate the stability, security, or privacy of the website or the users of the websites or their systems.

The term of this Agreement shall commence upon the Effective Date.

The term of this Agreement shall remain in effect until terminated by either party in accordance with this Agreement or superseded by a new agreement which is mutually agreed upon in writing.

The Access Term associated with any Order may be specified in the Order details and continue until the expiration of the term unless terminated in accordance with this Agreement. If no specific Access Term is defined in an Order, then the Access Term shall begin on the date that the order is executed and end upon completion of the scope of work.

If either party materially defaults in the performance of any Order or the provisions of this Agreement then the non-defaulting party shall be entitled to terminate the Agreement or applicable Order if written notice is provided and the default is not cured within 30 days after receiving the notice.

Upon such termination of an Order for cause due to BetaTesting’s breach of Agreement, the Customer will receive a prorated refund of any prepaid fees for the unused portion of the Services from the termination date through the end of the prepaid period.

Upon such termination of an Order for cause due to breach by Customer, Customer agrees to pay all unpaid fees for the remainder of the Access Term associated with all affected Orders.

BetaTesting may at any time terminate this Agreement if required to do so by law.

BetaTesting may suspend the Customer’s (or any Authorized User’s) access to the Services, or pause delivery of the Services, if the Customer materially breaches the Agreement. Suspension may occur:

BetaTesting will notify the Customer promptly if any User access is suspended and may restore access once the issue is resolved to BetaTesting’s reasonable satisfaction. BetaTesting is not responsible for any loss or damage caused by suspending or terminating access to the Services due to the Customer’s material breach.

BetaTesting reserves the right to suspend access to the Service due to any threat to the technical security of the Service.

BetaTesting guarantees to the Customer that the Services will function in all material respects as described in the current documentation and will be carried out in a professional and competent manner in all material respects. This warranty does not apply to issues that: (a) are outside BetaTesting’s reasonable control; (b) result from actions or omissions by the Customer or third parties; or (c) are caused by the Customer’s systems or environment; or (d) arise from BetaTesting following the Customer’s specific instructions..

If the Services do not meet this warranty, the Customer’s only remedy is that BetaTesting will use commercially reasonable efforts to correct the issue so the Services perform as described and meet the promised standard. If BetaTesting cannot restore the functionality or correct the issue within a reasonable time—based on the severity and impact of the issue—after accepting the Customer’s claim, the Customer may terminate the affected Order as it relates to the non-conforming Services. In that case, the Customer will receive a prorated refund of any prepaid Fees for the period they were unable to use the non-conforming Services. BetaTesting shall have no obligation for any warranty claims unless notified of the claim within 30 days of the first material failure.

Warranty Disclaimers:

Except as specifically stated in this section, BetaTesting makes no other warranties about the Services, test results, feedback output, Participants, BetaTesting Property, or any other related matters. All other warranties—whether express or implied—are disclaimed, including implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Any Services that are provided for free are offered “as is” with no warranties of any kind.

Neither party will be liable for any indirect, incidental, special, economic, or consequential damages—such as lost profits, loss of use, loss of business, or harm to goodwill—whether or not they were advised about the possibility of such damages.

Each party’s total liability for damages under this Agreement is limited to the amount the Customer actually paid or owes to BetaTesting in the 12 months before the event that caused the damage, except for:

(a) fees owed to BetaTesting

(b) the Customer’s breach of their obligations under this agreement

(c) either party’s indemnity obligations under Section 16, and

(d) fraud, gross negligence, or willful misconduct by either party,

This limitation applies no matter the legal basis—contract, tort, negligence, or multiple claims—and does not apply where liability cannot be legally limited or excluded.

BetaTesting will indemnify, defend, and hold the Customer harmless from any losses resulting directly from a third-party claim that the Customer’s authorized use of the Services under these Terms infringes that third party’s valid patent, copyright, or trade secret.

This obligation does not apply if the claim is based on:

(a) use of the Services outside of BetaTesting’s instructions;

(b) changes or combinations involving the Services not made or approved by BetaTesting;

(c) the Customer’s failure to meet Customer Responsibilities defined in section 10 of this Agreement

(d) the Customer continuing the allegedly infringing use after being notified or after being provided a non-infringing alternative.

If a Service is, or in BetaTesting’s view is likely to become, subject to a claim or court order preventing its intended use, BetaTesting may choose to:

(i) secure the Customer’s right to keep using the Service; or

(ii) replace or modify the Service to avoid infringement without significantly reducing its core functionality.

If neither option is reasonably available, BetaTesting may cancel the affected Order with written notice. In that case, the Customer will receive a prorated refund of any prepaid fees covering the time between termination and the end of the order term.

If any Customer Data Provided is claimed or found to infringe or violate a third party’s intellectual property or other legal rights, the Customer will indemnify, defend, and hold BetaTesting harmless from any resulting losses. However, the Customer is not responsible for any losses caused by BetaTesting’s unauthorized use of the Customer Data Provided.

In any claim to receive indemnification, the party seeking it must:

(a) promptly give written notice of the claim, and

(b) provide reasonable cooperation, information, and assistance.

The party providing indemnification will have full control over the defense and any settlement or resolution of the claim. However:

(i) the indemnified party may hire its own separate legal counsel and take part in the defense at its own cost;

(ii) no settlement that impacts the indemnified party’s rights or reputation can be made without that party’s prior written approval, which cannot be unreasonably withheld or delayed; and

(iii) the indemnifying party cannot settle any claim unless it fully and unconditionally releases the indemnified party from all related liability.

This Agreement is a complete and exclusive statement of the entire agreement between you and BetaTesting concerning the Website.

If any portion of this Agreement is found to be illegal or unenforceable, neither the validity nor enforceability of the remainder of the Agreement shall be affected. The failure of BetaTesting to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

Neither party may use the other’s name, logo, trademark, likeness, or other identifying details without prior written approval. However, the Customer agrees that BetaTesting may include the Customer’s name, logo, trademark, or similar information in customer lists and marketing materials.

This contract shall be governed and construed in accordance with the laws and jurisdiction of courts of (a) Delaware and the federal laws of the United States if the Customer is located in North America or South America, or (b) English law if the customer is located somewhere else in the world. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded from applying to this Agreement.

You may not assign or transfer all or any part of your rights under this Agreement without the express written consent of BetaTesting.

Notwithstanding anything to the contrary, the following sections survive any termination of this Agreement: 4, 6, 7, 8, 9, 10, 14-Warranty Disclaimers, 15, 16, 17.

The captions and bold paragraph headings included in this Agreement are for convenience only and shall not be given any legal or contractual effect.