Last updated: 16 November 2022
PingPong is now operating under the brand Hotjar Engage. Any references in these Terms and Conditions and supporting documentation to PingPong should from the publication date of this contract apply equally to Hotjar Engage.
Please read these Terms and Conditions, carefully before registering for a subscription for the Services offered on this website operated by PingPong UX Limited (“PingPong”) with its registered office at C/O Craufurd Hale Group Ground Floor, Arena Court, Crown Lane, Maidenhead, United Kingdom, SL6 8QZ, England, registered company number, 10551060, VAT number GB261287208.
In this Agreement, the following words shall have the following meanings:
means any and all information in whatsoever form relating to PingPong, You, Internal Testers, External Testers or the business, prospective business, finances, technical processes, computer Software (both source code and object code), Intellectual Property Rights or finances of PingPong or You (as the case may be) which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential;
means the data processing agreement of PingPong published on our webiste as amended from time to time;
means the date on which payment for the Order is accepted by PingPong issuing an invoice;
means Your own users, sourced by You to participate in a particular research session offered as part of our Services;
means the fees payable for the Services included in each Order at the rates published on our webiste as amended from time to time;
means a user who has registered a tester account with PingPong to take part in research;
shall mean copyrights, rights to use, and trademarks, property rights, patents, patent applications, trade secrets, moral rights, know-how, trade names, service marks, logos, domain names and any other industrial or intellectual property rights recognised in England or any other jurisdiction; in each case whether registered or unregistered, which currently subsist, or will subsist, now or in the future, in any part of the world;
means the online order form completed by You, each time You sign up to our Services;
means any data that can be used to identify an individual, whether directly or indirectly (e.g. name, identification number, location data, an online identifier, etc.). This definition includes any equivalent definition in the Applicable Law;
means the Software application services of PingPong described in this Agreement, including any computer Software programmes and, if appropriate, any updates;
shall mean the Software as a service (SaaS) offered by PingPong consisting of a variety of analytics and user feedback products;
means the period starting on the Effective Date until the Agreement is terminated in accordance with the rights of the parties set out in this Agreement;
means these terms and conditions of PingPong published on our website as amended from time to time;
means free access provided to You by PingPong for a limited and established period of time, to the Software;
means the company or person who completes the Order;
means all data that You post, link, store, share and otherwise make available within or via the Services for the purpose of using the Services or facilitating Your use of the Services, including but not limited to, any Personal Data or Confidential Information, in particular all information, text, graphics, videos or other material and External Testers.
2.1 PingPong provides a research product that facilitates user interviews and user tests between You (“Researcher”) and Internal Testers or External Testers. The platform enables You to create new research with Internal Testers or External Testers by defining the length of a session, the number of Internal Testers or External Testers, the demographic settings and creating the screening survey. Based on Your settings the platform allows you to invite External Testers for Your research or invites Internal Testers from its pool to participate in Your sessions. The sessions are provided via the platform where the Internal Tester or External Testers can share their screen, video camera and microphone. Sessions are automatically recorded on the platform and can be watched remotely by users authorized by You.
3.1.1 Internal Testers are private individuals who have signed up with PingPong and indicated that they are willing to participate in research. Internal Testers are not PingPong’s employees, agents or representatives. PingPong shall have no liability to You whatsoever for the acts or omissions of Internal Testers, including in particular any use of Your Confidential Information that You make available to them as a result of this Agreement.
3.1.2 Internal Testers are automatically compensated by PingPong at the end of a session for taking part in a session with You.
3.1.3 You may only communicate with Internal Testers via the Services unless You have an existing relationship with the Internal Tester before inviting them to participate in a session.
3.1.4 You undertake not to solicit or employ any Internal Tester with whom You have had a session, within 12 months of the most recent session with such Internal Tester. Any breach of this section shall be deemed a material breach of this Agreement and could also result in termination of Your account. You hereby permit PingPong to review communications made between You and any Internal Tester to check compliance with this provision.
3.2.1. External Testers are sourced by You, and may be Your internal personnel, or any external person who has signed up to open a tester account via a unique link generated by You to participate in Your research project via our Services.
3.2.2. You may use the Services to: (i) recruit Your own External Testers; (ii) run research with External Testers; (iii) create research, schedule, screen and run sessions with External Testers.
3.2.3. If You request, PingPong will transfer Personal Data of the External Testers to You in a structured format.
3.2.4. PingPong acts as the data processor of the Personal Data of the External Testers and You are the controller and owner of the Personal Data of External Testers. You shall be solely and exclusively responsible for the lawfulness of the processing of External Testers Personal Data and other protected information. This includes obtaining any consent or other applicable legal basis that You are legally or contractually required to obtain.
3.2.5. No customers of PingPong other than You, have access to Your External Testers' data. PingPong shall have no liability to You whatsoever for the acts or omissions of External Testers, including in particular any use of Your Confidential Information that You make available to them as a result of this Agreement.
3.2.6. You shall be wholly responsible for the recruitment of all such External Testers used in any session and PingPong shall have no liability whatsoever for any transactions between You and such External Testers.
3.2.7. Unless You order additional services from PingPong, PingPong is not responsible for the compensation of External Testers. Any potential compensation of the External Testers remains Your sole responsibility and PingPong will not be liable for any compensation-related claims.
4.1 Except as otherwise stated herein, all rights, titles, and interest in our site and/or the Software and any content and Intellectual Property Rights contained therein are the exclusive property of PingPong. Unless otherwise specified, the Software is for Your limited use only and if You copy or download any information from this site and/or Software, You agree that You shall not remove or obscure any copyright or other notices contained in any such information.
4.2 Subject to this Agreement, PingPong grants You a limited, revocable, non-exclusive, non-transferable and non-assignable license to use the site and/or access the Software as a service (SaaS) solution for commercial use subject to the terms of this Agreement for the duration of the Term and solely for the purposes of receiving the Services. You hereby agree not to resell any part of the Software to third parties. You may not modify, copy, distribute, or otherwise use our site and/or the Software in any other way as set out in this section. You shall not use the Software, including in conjunction with, any device, program, or service designed to circumvent any deployed technological measures, in an attempt to control access to, or the rights in, a content file or other work protected by intellectual property laws.
4.3. Any breach of the above shall constitute a material breach of this Agreement and shall prompt PingPong, at our own discretion, to immediately suspend or terminate Your right to access the Services. Any breach of the above shall make You liable for damages suffered by PingPong.
4.4 You shall retain sole ownership of all rights, title and interest in and to Your Data and Your pre-existing Intellectual Property Rights. You grant PingPong a non-exclusive license to use Your Data and Intellectual Property Rights and any third party owned item from the Term to the extent required for the provision of the Services. PingPong is granted a non-transferable license to view any research and video data contained or created by the Services (including any of Your associated Software, Intellectual Property Rights and Confidential Information) for the purposes of complying with its obligations under this Agreement, for example for support, debugging or operational purposes.
4.5 You acknowledge and agree not to share any videos of sessions created via use of the Services publicly or for marketing purposes or any other purpose not specifically permitted by this Agreement. Videos may only be shared with Your own team only for the purpose of Your own internal market research or product/service improvement.
4.6 PingPong may take and maintain technical precautions to review Your use of the Services, in order to provide the Services to You, to evaluate its provision of the Services and to improve its service offerings.
5.1 We offer different subscription plans for our Software (the “Subscription Plan”), as well as an option to purchase credits which can be used to pay for our Services.
5.2 Fees are based upon the number of sessions and their length, or based on Your chosen Subscription Plan.
5.3 All Fees are exclusive of VAT, that may be applicable in Your jurisdiction.
5.4. Information about our Subscription Plans can be found on our site. For additional information on our Subscription Plans, please contact us. You may upgrade or downgrade Your Subscription at any time during Your subscription term, upon which PingPong will apply the respective fees on a pro-rata basis.
5.5 Trial Period: At the end of the Trial Period, You will be prompted to enter Your payment details if You have not already done so. If You've already updated Your payment method You will be automatically charged on the date shown on the billing section associated with Your Account.
5.6 Renewal Term: Unless You upgrade or downgrade Your Subscription Plan, You will be enrolled into an automatic renewing cycle for the same term at the conclusion of the Subscription Term (the “Renewal Term”). This applies to all Subscription Plans involving payment including monthly and annual renewals. This does not apply to credit-based plans.
6.1 Unless otherwise agreed in writing, PingPong shall invoice You in respect of the Fees automatically by charging all fees to Your credit card, debit card or other valid payment method used starting from the Effective Date, on a monthly or annual basis, as set out in the Order or Subscription Plan. Your payment obligations are non-cancelable and no payments are refundable other than for any canceled sessions as set out below.
6.2 All invoices are payable in full in the currency set out in the invoice together with any Value Added Tax (if applicable).
6.3 If You purchase credits to use our Services, once PingPong receives payment of the Fees, You are issued with credits that apply to Your use of the Services. Such credits are valid for up to 1 year after the date of issue.
6.4 You undertake that all details provided for the purpose of obtaining the Services will be correct and that the payment details used are Your own and that there are sufficient funds or credit facilities to cover the Fees.
7.1 You may cancel any scheduled sessions and will be credited with Fees paid for canceled sessions unless: (i) You cancel a scheduled session within 24 hours before the session starts, then Your account will be credited with 50% of the Fees for each cancelled session; or (ii) You cancel any session within 8 hours before the session starts, no credit for the Fees paid will be made to Your Account.
7.2 Where an Internal Tester does not attend a scheduled session for any reason, the Fees paid for the scheduled session will be credited in full to Your account.
7.3 If You (or a user authorized by You) fail to attend a session, no Fees relating to the session will be refunded or credited to You.
7.4 Where PingPong is unable to provide any Internal Testers for Your research request, You shall be refunded all Fees paid which remain unused on Your account, provided that You request a refund within 30 calendar days of being notified by PingPong that no participants have been found for Your research request. No refunds apply to Your use of External Testers via our Services.
7.5. This section shall only apply to purchased credits that can be used to pay for our Services and does not apply to the Services provided based on the Subscription Plan.
8.1 You agree and acknowledge that Internal Testers are neither employees nor agents of PingPong, but are independent contractors who use the platform to provide services to You by participating in sessions. All information or content provided by Internal Testers via the Services is provided “as is''. PingPong provides no warranties in relation to such content or information and shall have no liability whatsoever to You for Your use or reliance upon such content or information of Internal Testers nor for the acts or omissions of any Internal Testers.
8.2 The Services allow You to post, link, store, share and otherwise make available Your Data in text, graphics, videos or other material and You warrant and represent that: (i) You shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data; (ii) You rightfully own all right, title and interest in and to Your Data and have the right to use Your Data and grant PingPong, its employees, agents and subcontractors the right to use Your Data for the purposes set out in this Agreement; (iii) any use of Your Data by PingPong, its employees, agents, subprocessors and subcontractors with or via the Services shall not breach any rights of a third party.
8.3 You warrant and represent that You shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
8.4 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet Your requirements or that the Services will operate uninterrupted or error free. This section shall survive the termination of this Agreement.
9.1. In no event shall PingPong or any of its representatives be liable to You or any third party for any direct, indirect, special, exemplary, punitive or other consequential or incidental damages (including but not limited to any lost profits or revenue, interruption, loss of programs or other information, or any other measurable loss) arising directly or indirectly from:
a) Your use of or access to our site and/or Software, or any content, products or Services distributed on or provided through our site and/or Services,
b) or any failure or interruption of our site and/or Software;
whether arising out of errors, omissions, loss of data, defects, viruses, interruptions or delays in operations or transmission or any other cause, whether based on warranty, contract, tort (including negligence) or any other legal theory, even if PingPong or its suppliers have been expressly advised of the possibility of such damages. This limitation of liability does not apply to direct damages for which PingPong is liable due to PingPong’s violation of a third party’s Intellectual Property Rights.
9.2. In any event, PingPong's total maximum aggregate liability under this Agreement shall not exceed the total Fees (excluding any VAT, duty, sales or similar taxes) paid or to be paid by You to PingPong during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
9.3 PingPong shall not be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Internal Testers and External Testers. In no event shall You raise any claim under this Agreement more than one (1) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement. This section shall survive the termination of this Agreement.
9.4 You acknowledge and agree that in entering into this Agreement, You had recourse to Your own skill and judgment and have not relied on any representations made by PingPong, or any of its employees or agents.
10.1. Our Indemnification Obligations: PingPong agrees to defend You against any claim, suit or proceeding brought by third parties (the “Claim(s)”) arising from or relating to Our violation of a third party’s Intellectual Property Rights directly arising out of Your use of the Software in accordance this Agreement, and will indemnify and hold You harmless against any damages and costs awarded against You or agreed in settlement by PingPong (including reasonable attorneys’ fees) resulting from such Claim. PingPong shall have no indemnification obligation with respect to any Claims arising out of or related to (including but not limited to):
a. Your Data;
b. Your violation of any Applicable Laws;
c. Your violation, whether alleged or actual, of any third party rights, including but not limited to data protection and privacy rights;
d. Your violation of this Agreement;
e. Your violation of this Agreement, negligence, willful misconduct, or fraud;
f. Your failure to use any enhancements, modifications, or updates to the Software that have been provided by PingPong;
g. modifications to the Software by anyone other than PingPong; or
h. combinations of the Software with Software, data or materials not provided by PingPong.
10.2. Your Indemnification Obligations: You shall indemnify, hold harmless and defend PingPong, including any of its subsidiaries, officers, owners, partners, directors, employees, contractors, agents, shareholders, licensors, suppliers and other partners (“PingPong Indemnified Parties”), to the maximum extent permitted and in full at Your own cost, from any demands, disputes, liabilities, Claims, obligations, losses, damages, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (including but not limited to):
a. Your unauthorized use of any material obtained through our site and Software;
b. Use by PingPong of Your Data or External Testers’ data in providing the Services
c. Your use and access to our site and Software which is not in accordance with this Agreement;
d. Your Processing of Personal Data in connection with Your use of our Software;
e. Your violation of the Agreement; and
f. Your violation, whether alleged or actual, of any third party rights.
10.3. Indemnification Procedures: The parties’ respective indemnification obligations above are conditioned on:
a. the indemnified parties giving the indemnifying party prompt written notice of the claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the indemnifying party is prejudiced by the delay or failure;
b. the indemnifying party has full and complete control over the defense and settlement of the claim (if permitted by applicable law) in particular, the indemnified party shall not settle or make other binding declarations concerning the third party claim without the prior written approval of the other party;
c. the relevant indemnified parties providing assistance in connection with the defense and settlement of the claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the indemnified parties), as the indemnifying party may reasonably request; and
f. Your violation, whether alleged or actual, of any third party rights.
10.4. Infringement Remedy: If You are enjoined or otherwise prohibited from using any of the Software or a portion thereof based on a third party Intellectual Property infringement claim covered by our indemnification obligations under this Clause above, then PingPong will, at our sole expense and option, either:
a. obtain for You the right to use the allegedly infringing portions of the Software;
b. modify the allegedly infringing portions of the Software so as to render them non-infringing without substantially diminishing or impairing their functionality; or
c. replace the allegedly infringing portions of the Software with non-infringing items of substantially similar functionality. If PingPong determines that the foregoing remedies are not commercially reasonable, then PingPong will promptly provide a prorated refund to You for any prepaid Fees received by PingPong under this Agreement that correspond to the unused portion of the subscription term. The remedy set out in this Clause is Your sole and exclusive remedy for any actual or alleged infringement by Us of any third party Intellectual Property Rights in the event that You are enjoined or otherwise prohibited from using any of the Software or a portion thereof based on a claim covered by our indemnification obligations under this Clause. This limitation shall not apply in the case of PingPong’s willful misconduct.
10.5. You shall not, without the prior express written approval of PingPong, attempt to, or settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for PingPong. This clause shall survive termination of this Agreement, howsoever occurred, and termination of Your access and/or use of our site or Software.
11.1 PingPong may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if: (i) You have used or permitted the use of the Services otherwise than in accordance with this Agreement; or (ii) PingPong is prohibited, under the laws of England or otherwise, from providing the Services.
11.2 Either party shall be entitled to terminate this Agreement on written notice to the other party if the other party: (i) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; or (iii) is prevented by an event of force majeure from fulfilling its obligations for more than twenty eight (28) business days.
11.3 Upon termination of this Agreement PingPong shall: (i) immediately cease providing the Services to You and all licences granted hereunder shall terminate. No Fees already paid shall be refunded; (ii) at Your option, following receipt of a request from You delete (in accordance with the terms of the DPA) or return all of Your Data stored in PingPong’s database in a machine readable format, free of charge, provided that such request is made within thirty (30) calendar days of termination. If You require any of Your Data to be returned in a different format PingPong reserves the right to charge for this additional service on a time and materials basis.
11.4 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
12.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
12.2 Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking.
12.3 Both parties agree to return (or destroy at the request of the disclosing party) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
12.4 The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the Effective Date of this Agreement, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.5 The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this section and without limitation, all information falling within the definition of Confidential Information as set out in this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is: (i) Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or (ii) a trade secret of the disclosing party; and (iii) information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.
13.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
13.2 To the extent that personal data is processed when You or Your users use the Services, the parties acknowledge that PingPong is a data processor and You are a data controller and the parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.
13.3 If a third party alleges infringement of its data protection rights, PingPong shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
14.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
14.2 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
14.3 Both parties may only assign their rights and obligations under the Agreement in connection with a consolidation, merger, acquisition or sale of substantially all of their assets, shares or activities without the prior written consent of the other party.
14.4 PingPong and You are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
14.5 Amendments to the Agreement shall be in writing (which includes email) and all notices shall be sent via email. Notices about amendments to the Agreements shall be deemed to have been duly given if posted by PingPong as a written notice at www.hellopingpong.com/legal, and if sent to You to the email address linked to Your account. All changes shall be deemed to have been accepted by You unless You terminate the Agreement prior to the expiry of the 30 calendar days period, provided such changes are not mandated by law to take effect on an earlier date. Your use of our site and/or Software following the notification date of any modifications to this Agreement will also constitute Your acceptance of the modified Agreement.
14.6 Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
14.7 This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
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