Terms and Conditions Contracted Tester (08-11-12)
Terms and Conditions Contracted Tester
Version 1.0 | 08-11-2022
This document contains the 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") that govern the relationship between User Sense and testers that perform assignments for User Sense.
Article 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:
- Account: an account of Tester which grants access to the Platform and/or App.
- Agreement: any arrangement or agreement regarding the performance of work by Tester between User Sense and Tester, of which the Terms and Conditions Contracted Tester are an integral part.
- App: the application of User Sense via which UX-tests can be conducted.
- Assignment: a specific assignment that Tester will carry out, as is agreed upon by Parties, which can consist of the execution of a Test, to which these Terms and Conditions Contracted Tester apply.
- Credits: the method of payment on the Platform, via which Customer can purchase services of User Sense, and which are used for the payment of Tester for the performed work.
- Customer: the customer of User Sense, which concludes an agreement with User Sense, to which an Assignment can relate.
- General Terms and Conditions: the general 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).
- Party/Parties: User Sense and Tester, 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.
- 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. A session can involve many research techniques and may consist of interviews, questionnaires, focus-groups etc.
- Terms and Conditions Contracted Tester: these terms and conditions contracted tester of User Sense.
- Test: a UX-test or research that may be conducted on the Platform and/or App, which can involve one or multiple Sessions.
- Tester: the natural person or legal entity, whether or not acting in a professional capacity, whom User Sense concludes the Agreement with.
- 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 2. Applicability of the Terms and Conditions Contracted Tester
- These Terms and Conditions Contracted Tester apply to the Agreement and the performance of the Services by Tester, unless explicitly agreed otherwise in Writing. Furthermore, the General Terms and Conditions apply to the Agreement and the performance of the Services by Tester, to the extent that this follows from the General Terms and Conditions.
- The applicability of any terms and conditions of Tester is expressly excluded.
- Deviations and additions to these Terms and Conditions are only valid if they are agreed by Parties in Writing.
- In the event of any contradiction between different documents, the following order of precedence applies:
a. additional Written and signed agreements;
b. the Terms and Conditions Contracted Tester;
c. the General Terms and Conditions.
Article 3. Conclusion and term of the Agreement
- The Agreement is concluded at the moment that Tester has completed registration on the Website.
- The Agreement has been entered into for an indefinite period, and may be may be terminated (in Dutch: opgezegd) by either Party in Writing with due observance of a one (1) month notice period.
- Termination of the Agreement (in Dutch: opzegging) does not affect Tester's obligations regarding Assignments already agreed upon. For the avoidance of doubt, after termination (in Dutch: opzegging), Tester has the duty to execute the Assignments already agreed upon by Parties at the moment of termination (in Dutch: opzegging), at the terms of the Agreement.
- 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 Tester is declared bankrupt, Tester applies for or is granted suspension of payments, Tester’s activities are ceased or its business is wound up.
Article 4. Nature of Agreement
- The Agreement is a contract within the meaning of section 7:400 of the Dutch Civil Code. The parties agree that, if in any case deemed relevant, the fictitious employment relationship of homeworkers or persons treated as such as referred to in articles 2b and 2c of the Uitvoeringsbesluit Loonbelasting 1965 and articles 1 and 5 of the Besluit aanwijzing gevallen waarin arbeidsverhoudingen als dienstbetrekking wordt beschouwd (Decree of 24 December 1986, 1986, 655) shall not apply.
- Nothing in these Terms and Conditions Contracted Tester shall be determined to constitute an employment agreement within the meaning of article 7:610 of the Dutch Civil Code and Tester is not entitled to receive any of the benefits, rights or protections which an employee of User Sense would receive. Fees payable hereunder are regarded by User Sense as freelance earnings and no income tax or so called social security payments will be deducted from the fees payable hereunder. Tester is obliged and responsible to observe the applicable tax-laws he/she is subject to. User Sense is not liable for any claims/penalties that may occur due to Tester not complying with the applicable tax-laws.
- User Sense explicitly agrees that Tester may also perform work for other parties, provided that this does not impede the proper performance of the Agreement between User Sense and Tester.
Article 5. Conclusion of Assignments
- Tester can do the qualification test that is available in the Account of Tester. Tester will not be reimbursed for the execution of the qualification test.
- In order for Tester to be eligible for carrying out certain Assignments, a positive result of the qualification test may be necessary, as may be indicated by User Sense. After receiving a positive result for the qualification test, Tester has a higher chance to being eligible for certain Assignments. Tester needs to be invited by User Sense in order to be eligible for the performance of Assignments that relate to non-automated (moderated) Tests.
- After registration is completed, Tester can freely choose to respond to Session-requests. Tester will only be shown Session-requests for which Tester has the desired specifications. However, in deviation from the foregoing, it may sometimes be necessary for Tester to complete a questionnaire in order to determine its eligibility.
- An Assignment between User Sense and Tester is concluded after acceptance of a Session-request by Tester, or after confirmation by User Sense of the Assignment insofar applicable, unless Parties agree that Tester will execute the Session under responsibility and for the account of Customer of User Sense, and will conclude an agreement directly with that Customer. In that case, these Terms and Conditions Contracted Tester do not apply.
- The content of the Assignment is determined by the content of the Session-request and, additionally, these Terms and Conditions Contracted Tester.
- Unless the Assignment relates to the research service of User Sense, Tester can cancel the Assignment by sending a notice to User Sense in Writing, not later than forty-eight (48) hours before the start of the Assignment. An Assignment cannot be canceled within forty-eight (48) hours of the start of the Assignment. Assignments that relate to the research service of User Sense cannot be canceled.
Article 6. Performance of Assignments
- After acceptance of an Assignment, Tester is bound to perform the Assignment with due care and craftsmanship.
- Tester can carry out the Assignments autonomously, at its own discretion and without supervision of User Sense. Tester is therefore free to realise the Assignment in a way he/she sees fit. User Sense can only give instructions regarding the desired objective of the Assignment. Also, insofar this is necessary for the performance of the Assignment, Tester shall coordinate with User Sense in case cooperation with others takes place.
- If at any time Tester anticipates that he/she will not be able to fulfil its obligations in connection with an accepted Assignment, or will not be able to do so in time, Tester must inform User Sense, and if applicable, the relevant Customer immediately.
a. Tester is not present at the agreed upon time and location (whether online or on-site) for a Session;
b. Tester uses inappropriate language;
c. Tester provided false information to User Sense (whether or not regarding answers in questionnaires); or
d. Tester did significantly not meet the quality criteria that can reasonably be expected from the Tester.
Article 7. Duties Tester
- Before or when concluding the Agreement, Tester shall inform User Sense whether or not he/she is liable to pay VAT, and shall provide the VAT number to User Sense if applicable. Tester has this duty because User Sense has certain obligations, based on law, that relate to the payment of Testers.
- Testers who act in a private capacity and are liable to pay taxes in the Netherlands may be obliged to provide their BSN-number before, at or after registration.
- Tester warrants that he/she complies with his statutory obligations regarding (value added) taxes and social insurance contributions due or to become due in connection with work performed by him/her or by a person engaged by him/her under this Agreement.
- If User Sense is held liable by the tax authorities for non-payment of wage tax and/or social insurance contributions (by Tester or a third party engaged by Tester), User Sense will be uthorized to recover the amount for which User Sense is held liable (including the interest thereon and any administrative penalties) from Tester.
- All losses, including interest and costs, incurred by User Sense in connection with claims from tax authorities as referred to in this article will be compensated by Tester.
- Tester is responsible for his/her own materials that are necessary for the performance of the Assignment. In this regard, Tester shall ensure that, if relevant for the performance of the Assignment, he/she has adequate hardware and or other materials for the performance of the Assignment (including but not limited to an internet connection and a camera). Furthermore, in case Tester has to travel to perform an Assignment, Tester is responsible for arranging transport. Unless Tester is informed otherwise by User Sense, User Sense will not reimburse any costs that Tester makes in the performance of the Agreement.
- If an Assignment concerns the performance of a Session or other work to be carried out at a certain agreed time, and Tester is not present on time, User Sense has the right not to proceed with payment for the performance of the Assignment if this is reasonably justified in the specific case.
Article 8. Compensation and payment
- For the performance of an Assignment, Tester is entitled to a fee, subject to the conditions in these Terms and Conditions Contracted Tester.
- In case the Assignment concerns the performance of an automated Session on the Platform and/or the App, Tester will receive an amount in euros, as specified on the Platform, exclusive of VAT, for the performance of the Session. Or if applicable, the same amount but converted into the currency of choice, subject to a currency conversion fee, which will be displayed on the Platform, on top of the then applicable exchange rate of the European Central Bank, which fee shall be borne by Tester.
- The right to the fee as meant in the previous paragraph is subject to the performed Session being approved by User Sense, based on the criteria that User Sense uses, which, on request, User Sense will provide to Tester. The review of the Session concerns a limited assessment of the content of the Session, limited to whether the content of the executed Session matches the aim of the Session, and whether the basic conditions (such as, but not limited to visibility of Tester on the video and audibility of the sound) are sufficient. User Sense will endeavour to review the Session within five (5) working days after the Session has been executed. After the review of the Session is completed, User Sense will send the result and the details of the review to Tester.
- For other Assignments Tester will receive the fee as further indicated by User Sense.
- In first instance, payment shall be made in Credits, which Credits shall then be automatically paid out to Tester in euros or another currency. This means that Tester will always be paid fully in euros or another currency.
- To this end, Tester gives permission for User Sense to send Tester a reversed invoice (‘reverse-billing’). If applicable, Sense shall send a receipt to Tester.
- Tester must verify the reversed invoice or receipt on the Platform within seven (7) days after the invoice/receipt date. In case Tester does not dispute the invoice or receipt within that term, Tester shall be deemed to have approved the reversed invoice or receipt.
- Payment in euros or another currency shall be made within seven (7) days after approval of the reversed invoice or receipt by Tester.
- All payments in other currencies than euros are subject to a currency conversion fee, which will be displayed on the Platform, on top of the then applicable exchange rate of the European Central Bank, which fee shall be borne by Tester.
Article 9. Privacy
- User Sense will process any personal data in relation to the Agreement in accordance with its privacy statement, which can be found on the Website or here.
- The fulfilment of Agreement may entail the processing of personal data. In the event that personal data are processed, module D of the General Terms and Conditions regarding the processing of personal data is applicable.
Article 10. 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.
- Tester grants User Sense a non-exclusive, non-revokable, sublicensable, perpetual license to use all materials that are created in the performance of this Agreement, including but not limited to video materials, notes, transcripts and other texts by Tester, for the purpose of the provision of service by User Sense to its Customers. To the extent applicable and permitted by law, Tester hereby waives any possible applicable (statutory) right of objection, and grants User Sense permission to use the images and video material created in the performance of Assignments.
- Tester is not permitted to access the source code of the Platform or the App, either during or after the duration of the Agreement.
Article 11. Liability
- Tester shall be liable to User Sense for any damages to User Sense or third parties (such as but not limited to its Customers) occurring during the performance of, or in connection with the Agreement that are a result of acts or omissions by Tester or a third party engaged by him.
- If a third party suffers damages as referred to above and that third party holds Tester liable, or holds User Sense liable and the latter would like to take recourse against Tester, the Parties agree that the damages will ultimately be borne by Tester.
Article 12. Confidentiality
- Tester shall refrain from disclosing or using for any other purpose than within the scope of the Agreement, any trade secrets and any other information that is disclosed to Tester in the performance of the Agreement that has been designated as confidential or the confidential nature of which is known or can reasonably be deemed to be known by Tester. 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.
- 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, Tester accepts the duty to observe strict secrecy with respect to all information regarding the activities and organization of User Sense and its Customers, except as far as such information was already part of the public domain without any involvement Tester.
- Tester 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 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.
- 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.
- Tester furthermore undertakes to make all documents and data concerning User Sense or its Customer, as well as copies or notes made thereof, available to User Sense upon request and without delay upon termination of this Agreement.
- The provisions of this article continue to apply even after the Agreement has ended.
Article 13. Miscellaneous
- The Agreement shall be governed by Dutch law. English language words used in the Agreement 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 Agreement between Parties will be submitted to the competent Dutch court in the jurisdiction where User Sense is established.
- If any provision of the Agreement 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 Agreement as much as legally possible.
- Tester is not entitled to transfer the rights and obligations under the Agreement to a third party, including a merger or takeover, without the written permission of User Sense.
- Tester grants User Sense the right to, without requiring the express permission of Tester, transfer the Agreement concluded between Parties in full to a third party in in the event of a merger or acquisition. User Sense will notify Tester if such a transfer has taken place.