Terms of service

By using the Helio website (“Service”), services of ZURB, inc. (“ZURB”), you are agreeing to be bound by the following terms and conditions (“Terms of Service”).

Terms (Updated December 19th, 2019)

The terms of service (“Agreement”) and any applicable orders (“Order(s)”) forms a legal contract between you (“Customer”) and ZURB, Inc. (“ZURB”) that governs your access and use of the ZURB services and software. By using any of the Services or the Platform, you agree to be bound by this Agreement. If Customer is using the Platform or Services on behalf of an organization, Customer agrees to this Agreement for that organization and representing to ZURB that Customer has the authority to bind the organization to their Agreement (in which event, “Customer” will refer to the organization). Customer may use the Platform and Services only in compliance with this Agreement and only if Customer has the power to form a contract with ZURB and is not barred under any applicable laws from doing so.


1.0 Overview & Orders

1.1 Tests and Panelists

ZURB has developed a software platform and service (the “Platform”) that enables Customer to conduct user experience and usability tests (“User Tests”), composed of questions (“Test Questions”), on websites and mobile applications (“Digital Properties”). Individuals participating in User Tests (“Panelists”) are selected by ZURB in accordance with Customer’s direction to perform and record User Tests for the Customer’s benefit (“Usability Testing”). These Panelists create panelist responses (“Answers”) toward fulfilling a User Test. Panelists are neither employees nor agents of ZURB, but are independent third-party service providers using the Platform to provide services to Customer. As such, ZURB expressly disclaims all liability for the acts or omissions of the Panelists. Furthermore, Customer is responsible for compliance to ZURB’s Helio Privacy Policies in place, and all applicable laws and regulations (whether local or global). Specific to the GDPR, ZURB is acting as Data Processor for all of the data collected as a result of Customer’s User Tests.

1.2 Orders

ZURB shall provide Customer a limited right to access and use the Platform for the purposes of initiating and reviewing User Tests. In addition, ZURB may perform professional services related to such User Tests (“Services”) in compliance with Customer’s Orders signed by Customer and ZURB. Orders shall specify: (i) the specific Services to be furnished by ZURB; (ii) the performance schedule relating to such Services; (iii) the applicable fees and payment terms related thereto. The first such Order and any subsequent Orders are referenced herein. Collectively, recordings (audio and video) of User Tests and all other deliverables resulting from the Services shall be referred to as “Deliverables,” except for any ZURB Property incorporated into the Deliverables, as set forth in Section 4.1 below. By executing an Order, Customer may initiate and review User Tests with Answers (one Answer per Test Question, if applicable) that are designated within the subscription period specialized in the Order (the “Order Term”). Any applicable service hours required for ZURB to provide specific professional services (“Professional Service Hours”) shall also expire at the end of the Order Term. No refunds shall be provided for any unused Credits/Answers or Professional Service Hours remaining on Customer’s balance after the expiration of the applicable term. Upon completion of each User Test that Customer initiates and reviews, ZURB will provide the Deliverables specified in Customer’s Order for that User Test.

2.0 Use of Platform and Services

2.1 Subscriptions and Seat Licenses

Unless otherwise provided in the applicable Order, access to the Platform and Services is purchased as a subscription with a designated number of administrative account licenses that can access the Platform, utilize the Services and initiate or “launch” a User Test. Additionally, Orders may also designate a specific number of customized account licenses with reduced capabilities (“Member Seat Licenses”).

2.2 Seat License Limits

Seat Licenses must be assigned to individuals residing within the same department in the applicable Order, unless otherwise agreed to in writing by both parties. With ZURB’s prior written approval, a Seat License may be reassigned to an individual or department. Customer will ensure Seat License holders (a) comply with this Agreement; (b) do not share login details and passwords; and (c) do not permit direct or indirect access to the Platform and/or Services in a way that circumvents a contractual license limit.

3.0 Pricing & Payment Terms

3.1 Pricing and Payment Terms

The rates and reimbursable expenses for access and use of the Platform and the provision of the Services shall be as set forth in an Order. Additional charges will apply in the event that Customer’s usage of the Platform or Services exceeds the baseline parameters set forth in the applicable Order. When ZURB invoices Customer for fees pursuant to an Order, Customer shall pay to ZURB the full, undisputed amount of each Order upon receipt of the invoice. In the event that Customer disputes an invoice, Customer must notify ZURB within 5 days or the invoice shall be deemed undisputed. Overdue undisputed invoices that remain unpaid fifteen (15) days after receipt shall be grounds for ZURB to terminate Customer’s access to the Platform or Services without refund of any fees paid. ZURB will not provide any refunds if Customer does not initiate all Customer’s designated User Tests before the end of the applicable Order Term.

3.2 Taxes

Amounts payable to ZURB under this Agreement are payable in full to ZURB without deduction and are net of taxes (including any sales, use, excise, ad valorem, property, withholding, value added tax, or other tax and any income tax withheld at source), tariff, duty or assessment levied or imposed by any government authority (including without limitation any country, state, city, county, province, department, or other subdivision of government) that may be applicable to the purchase of software licenses or Services hereunder. Customer shall pay and shall indemnify and hold ZURB harmless from all such taxes and customs duties. ZURB reserves the right to invoice for sales tax if required under the applicable taxing jurisdiction unless Customer provides ZURB with an exemption certificate or proof that Customer has self-assessed.

4.0 Intellectual Property

4.1 ZURB Property

“ZURB Property” means any pre-existing intellectual property and related rights of ZURB that are utilized by ZURB in performance of its obligations under the Agreement such as computer software, templates for reports or methodologies. ZURB Property also includes any elements of Services, subject to Customer rights in Customer Confidential Information and Customer Property, as defined respectively in 5.1 and 4.2 below, which are of general applicability to ZURB’s business and provision of services to other clients. ZURB Property will be the sole property of ZURB and even if incorporated into a Deliverable, will not be deemed to be a Deliverable. ZURB Property shall be deemed to be ZURB’s Confidential Information. Under the terms and conditions of this Agreement, ZURB hereby grants Customer a perpetual, worldwide, royalty-free, non-exclusive license to use the ZURB Property solely as incorporated in the Deliverables for Customer’s internal business purposes.

4.2 Customer Property

No Confidential Information obtained by ZURB from Customer and no Customer Property shall become ZURB’s property. All materials, sites, software, and applications provided or made available by Customer under any Orders shall be deemed “Customer Property” for purposes of the Agreement. During the performance of ZURB’s obligations under this Agreement, and subject to ZURB’s compliance with the terms of this Agreement, Customer grants to ZURB a temporary, revocable, non-exclusive license to use Customer Property solely as needed to perform ZURB’s obligations in connection with the Agreement. This license granted by Customer to ZURB for this purpose will expire upon the earlier of: (i) the time at which such license is no longer required by ZURB for the performance of its obligations to Customer, or (ii) termination or expiration of this Agreement or the applicable Order. No other licenses, express or implied, under any intellectual property rights are granted by Customer to ZURB under the Agreement.

4.3 Deliverables

ZURB agrees that to the extent that any Deliverable is subject to copyright: (a) every aspect thereof, other than ZURB Property that may be incorporated into the Deliverable, is a “work made for hire” (as defined in the U.S. Copyright Act) for Customer; (b) Customer shall be considered the author of the Deliverable for all purposes; and (c) Customer shall be the owner of all of the rights comprised in the undivided copyright (and all renewals, extensions, and reversions thereof, and all rental rights) in and to the Deliverable in perpetuity and throughout the universe. To the extent that any interest in any Deliverable may not be deemed a “work made for hire” under copyright law, ZURB hereby irrevocably assigns to Customer all right, title and interest in any and all rights of copyright (and all renewals, extensions, and reversions thereof) of the Deliverable other than ZURB Property. ZURB agrees that it will reasonably assist Customer in every appropriate way and at Customer’s cost with respect to Customer’s proprietary rights in the Deliverables. In addition, ZURB acknowledges and agrees that the Deliverables are Customer Confidential Information and the exclusive property of Customer (excluding any incorporated ZURB Property).

5.0 Confidentiality

5.1 Confidential Information

Each party (“Recipient”) agrees to retain in confidence any non-public information provided to it by the other party (“Discloser”) that is marked, labeled or otherwise designated as confidential or proprietary, or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Discloser (“Confidential Information”). Without limiting the generality of the foregoing, Confidential Information will include, without limitation, the results of all User Tests conducted hereunder and any Personally Identifiable Information (“PII”) shared in connection with this Agreement or any User Test. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is publicly known at the time of disclosure, (b) is received by Recipient from a third party without restriction on disclosure and without breach of a non-disclosure obligations, (c) is published or otherwise made known to the public by Discloser, (d) was generated independently without reference to the other party’s Confidential Information, or (e) Recipient rightfully knew prior to receiving such information from the Discloser. Recipient shall not disclose to any third party or use any Confidential Information disclosed to it by Discloser except to Recipient’s personnel who are required to have access to the Confidential Information to fulfill performance of this Agreement, provided that all such personnel shall be obligated in writing to maintain the confidentiality of any such Confidential Information, or as otherwise expressly permitted in this Agreement, and provided further that Recipient shall obtain Discloser’s written consent (in each instance) prior to disclosing any PII received from or through Discloser. Recipient will use at least the same standard of care with the Discloser’s Confidential Information as it does with its own Confidential Information to maintain the confidentiality of the Confidential Information in its possession or control, but in no event with less than reasonable care. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to notify the other party in advance of such disclosure so as to permit the other party to request confidential treatment or a protective order prior to such disclosure; and(ii) on a “need-to-know” basis to its financial advisors, lawyers or other advisors who are obligated to maintain the confidentiality of such information. Each party acknowledges that breach of this provision may result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section.

5.2 Panelists’ Personally Identifiable Information (“PII”)

Customer acknowledges that the Platform, User Tests and Services are not intended for the collection and processing of information that can be used to identify a particular individual, including but not limited to, name, date of birth, social security number, email, postal address, phone number and any other information that, either alone or in combination with other data, could be used to identify or contact a particular person (“PII””). However, under certain conditions, User Tests can be configured so that Panelists provide PII through or in connection with such User Tests. Customer agrees to obtain or cooperate with ZURB to obtain a Panelist’s explicit consent before collecting any PII. Customer further understands that in no event shall Customer be permitted to request any sensitive PII including but not limited to social security number or other identification number, medical or health-related information, or financial information from Panelists during a User Test. Customer acknowledges the risks inherent in the collection of such PII, and Customer disclaims all liability against ZURB for any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Customer as a result of the collection, use, transfer, or other processing of Panelists’ PII when specifically requested by Customer in connection with any Customer User Tests. Customer agrees that it will not use a Panelist’s PII for any purpose beyond the intended limited scope of this Agreement and that Customer will not use any such PII to contact a Panelist outside of the Platform.

5.3 Protection of Personally Identifiable Information (“PII”)

Recipient and Discloser hereby represent and warrant that each shall employ commercially reasonable measures to protect the receipt, collection, monitoring, maintenance, creation, transmission, use, analysis, disclosure, storage, disposal and security of PII and comply with applicable laws, regulations, statutes and ordinances governing the collection, use, transfer, or other processing of any PII provided in connection with this Agreement or User Tests. In addition to any other requirements described in this Section, Recipient and Discloser shall maintain reasonable security measures consistent with this Agreement to protect PII collected in connection with this Agreement from unauthorized access, use, disclosure, alternation, possession, loss, theft, manipulation, and/or destruction (“Unauthorized Access”). Such security measures will conform to applicable Privacy Policies, if any, and with all applicable data protection and privacy laws, rules, and regulations. Each party will notify the other party as soon as practicable of any Unauthorized Access of PII associated with Customer’s Usability Testing, including without limitation exceeding authorized access to or use of any PII. The notifying party shall cooperate fully with the notified party in investigating and responding to each successful or attempted Unauthorized Access.

5.4 Return or Destruction of Confidential Information

Upon termination or expiration of the Agreement, or upon Discloser’s request, Recipient shall (at Discloser’s option) return, destroy, or render inaccessible all Confidential Information provided to it by Discloser under the Agreement. Promptly after receipt of written request from the other party, each party shall either promptly return the other party’s Confidential Information in its possession or control, or confirm that such Confidential Information has been destroyed or rendered inaccessible.

5.5 Accepted Use

Subject to the terms and conditions herein, Customer hereby acknowledges and agrees that ZURB may compile aggregate de-identified results or metrics from all of, or a selection of, Customer’s use of the Platform, provided that such aggregated results will not contain information that could be used to individually identify Customer and/or any Customer Property. Such aggregate, de-identified results shall be deemed to be ZURB’s Confidential Information. Customer also hereby agrees that ZURB may: (1) use portions of the videos made for Customer to help promote the ZURB Platform, provided that, in each such instance, ZURB will (i) completely remove all identifying references to Customer and any Customer Property, and (ii) obtain Customer’s prior written approval; and (2) review Customer’s individual use of the Platform in order to provide Services to Customer, to evaluate ZURB’s provision of Services, and to improve ZURB’s service offerings.

5.6 Panelists And Panelists’ Non-Disclosure Agreement

ZURB will ensure that all Panelists agree to terms that include confidentiality provisions prior to participating in any User Tests hereunder. Customer will be a third party beneficiary of such terms as necessary to enforce its rights. In addition, if requested by Customer as part of the Services, ZURB will facilitate the execution of a form non-disclosure agreement of Customer’s individual selection by each of the Panelists before they perform Services for Customer.

5.7 Third Party Services

ZURB utilizes a limited number of third party contractors to facilitate specific services that are incorporated into the Services and Deliverables, including but not limited to translation, transcription and web hosting services. Customer understands that such third party contractors may have access to the Deliverables for the limited purpose of providing such ancillary services as described in an Order. ZURB shall assure that each third party contractor is only utilized for the intended limited scope of this Agreement, and is subject to confidentiality terms no less stringent than those contained herein. ZURB shall be liable and indemnify Customer for any damages, liabilities, costs and expenses arising from the breach of such confidentiality provisions by the third party service provider.

6.0 Customer Communications

6.1 Communication with Panelists

Customer agrees that Customer may only communicate with Panelists through the Platform, and, except for communication relating to Customer’s separate business with a Panelist, Customer may not contact Panelists or request that Panelists contact Customer through any other means. Customer may not solicit or hire any Panelist to perform Usability Testing or similar user experience and usability studies directly for Customer for a period of one year from the completion of the most recent User Test conducted on the Platform with that Panelist. Any such solicitation or hiring will be considered a material breach of this Agreement and may result in the termination of Customer’s account in addition to such other remedies available at law or in equity. Customer hereby gives ZURB permission to review communications made between Customer and any ZURB Panelist on the Platform to enforce this provision.

6.2 Private Panelists

In addition to the Panelists selected and compensated by ZURB, if included as a part of Customer’s Order, Customer may utilize participants that are pre-selected by Customer to perform Usability Testing (“Custom Audience Panelist”). In such instances, Customer shall be responsible for the recruitment and compensation of all Private Panel participants. Restrictions on communication and solicitation with Panelists shall not be applicable to Private Panel participants.

7.0 Terms & Termination

7.1 General

This Agreement will apply commencing on the Effective Date of the first Order from Customer and will continue unless and until either party gives the other party written notice of termination. Upon notice of termination: (a) the parties will not enter into any additional Order under this Agreement; and (b) each Order entered into prior to notice of termination will continue in full force and effect until completed, unless access to the Platform or Service is terminated in accordance with Section 7.2 of this Agreement.

7.2 Termination of Orders

If either party defaults in the performance of any of its material obligations under any Order or the terms of this Agreement, then the other party may terminate such Order or this Agreement by providing written notice of such termination (including, without limitation, a reasonably detailed description of the default and the action required to cure the default); provided, however, that such termination will not be effective if the defaulting party cures the default within thirty (30) days after receipt of such notice of termination. Upon termination of any Order: (a) Customer will pay ZURB in accordance with Section 3 for access and use of the Platform and Services performed in accordance with this Agreement prior to the effective date of termination; and (b) ZURB will deliver to Customer all completed Deliverables and work in process.

7.3 Survival

Upon the expiration or termination of this Agreement, the parties’ respective rights and obligations in the following provisions shall survive: 3.0 (“Pricing and Payment Terms”) (but only with respect to undisputed amounts due and owing that accrued before the termination or expiration of this Agreement and Section 3.2 “Taxes”); 4.0 (“Intellectual Property”), 5.0 (“Confidential Information”) (but only for a period of five (5) years after any termination or expiration of this Agreement; notwithstanding the foregoing, any obligations as to Personally Identifiable Information shall survive indefinitely), 6.0 (“Customer Communications”), 7.3 (“Survival”), 8.3 (“Warranty Disclaimer”), 9.0 (“Limitation of Liability and Waiver of Consequential Damages”), 10.0 (“Indemnification”) and 11.0 (“General Provisions”).

8.0 Warranty & Warranty Disclaimer

8.1 ZURB Warranties

ZURB represents and warrants that the Services provided by ZURB, if any, shall be provided in a professional and workmanlike manner. ZURB’s sole and exclusive liability for any breach of the above warranty shall be limited to re-performance of the Services. ZURB also hereby represents and warrants that (a) ZURB has full power and authority to enter into the Agreement and this Agreement will constitute a valid and binding obligation of ZURB; and (b) ZURB’s execution of the Agreement does not violate any other agreement to which ZURB is subject.

8.2 Customer Warranties

Customer hereby represent and warrants that Customer (a) has full power and authority to enter into the Agreement and the terms of conditions of this Agreement will constitute a valid and binding obligation of Customer; (b) will use the Deliverables and the Services in compliance with all applicable laws, rules and regulations (including, but not limited to, applicable privacy laws and regulations); (c) Customer’s execution of this Agreement does not violate any other agreement to which Customer is subject; (d) will use the Platform and Services for qualitative research and related purposes only; and (e) will not use the Platform and Services for the purpose of distributing computer viruses, malware, spyware or similar items to ZURB’s computers or other devices.

8.3 Disclaimer


9.0 Limitation of Liability & Waiver of Consequential Damages


10.0 Indemnification

10.1 ZURB Indemnification Obligations

ZURB agrees to (a) defend Customer against any claim by a third party that ZURB’s Service infringes a valid US patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any ZURB Service or the Platform becomes or, in ZURB’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, ZURB may, at its option (i) obtain for Customer the right to continue using the Service or Platform, or (ii) replace or modify the Service or Platform so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to ZURB, then it may (iii) terminate this Agreement upon written notice to Customer and refund to Customer fees that were pre-paid for the then current term, pro-rated for the remainder thereof.

10.2 Customer Indemnification Obligations

Customer agrees to indemnify, defend and hold ZURB harmless against any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Panelist as a result of the collection, use, transfer, or other processing of Panelists’ Personally Identifiable Information when specifically requested by Customer in connection with any Customer User Tests.

10.3 Exclusions

ZURB shall have no liability or obligation hereunder with respect to any claim based upon (a) use of the Services or Platform in an application or environment or on a platform or with devices for which it was not designed or contemplated, (b) modifications, alterations, combinations or enhancements of the Service not created by or for ZURB (c) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (d) any intellectual property right in which Customer or any Customer affiliates has an interest.

10.4 Required Procedures

Any claim for indemnification hereunder requires that (a) the party seeking indemnification provide prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim.

11.0 General Provisions

11.1 Assignment

Neither party may assign this Agreement without the other party’s prior written consent except in the event of a merger, acquisition or sale of substantially all of an assigning party’s assets. Any attempt to assign this Agreement other than as permitted above will be null and void.

11.2 Registration

To obtain access to the Platform or Services, Customer may be required to obtain an account with ZURB by completing a registration form and designating a user ID and password. When registering with ZURB Customer must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. By registering with ZURB, Customer agrees that ZURB may send Customer communications or data regarding the Platform or Services, including but not limited to promotional information and materials regarding ZURB’s products and services, via electronic mail.

11.3 Notices

Notice shall be deemed given upon receipt via e-mail, personal delivery, delivery by a nationally recognized overnight delivery service (e.g., FedEx), or postage prepaid by certified or registered mail, return receipt requested. Notices to ZURB will by certified or registered mail, return receipt requested. Notices to ZURB will be sent to: ZURB, Inc. PO Box 110218 Campbell, CA 95011. Unless noted otherwise by Customer, notices to Customer will be sent to the address appearing on the applicable Order form.

11.4 Governing Law

The Agreement shall be governed by and construed under the laws of the State of California without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties hereby submit to the exclusive jurisdiction and venue in the United States District Court for the District of Northern California or in the state courts with competent jurisdiction located in Santa Clara, California, and agree to have any action or proceeding between the parties or their successors, or upon, concerning, or related to this Agreement, any Order(s), the Terms and Conditions or any other agreement, transaction or dealing between the parties, heard by a judge of such courts. Accordingly, the parties waive their right to trial by jury in any such action or proceeding.

11.5 No Agency

The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.

11.6 Waiver

No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.

11.7 Severability

If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

11.8 Force Majeure

ZURB will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, service, acts of civil or military authorities, fire, floods earthquakes, accidents, strikes or fuel crises.

11.9 Publicity

Customer agrees that ZURB may use Customer’s company name and logo on ZURB’s client lists on ZURB’s Platform, website, and marketing materials.

11.10 Entire Agreement

This Agreement constitutes the complete and exclusive agreement between Customer and ZURB with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. ZURB expressly objects to any additional or conflicting terms proposed by Customer in a Customer purchase order or otherwise. No Customer form shall modify the terms of this Agreement. This Agreement may only be modified or amended by a written amendment executed by both parties.

Questions, comments and requests in relation to this Agreement should be sent to [email protected], or via regular mail to:

ZURB, Inc.
PO Box 110218
Campbell, CA 95011

Test and Learn
with an Audience