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Utest TesterNDA 2023
Utest TesterNDA 2023
“You,” or “Your”) and Applause App Quality, Inc. (“Applause,” “we,” or “us”). This Agreement governs your
testing activities under a particular Test Cycle.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. IF YOU
DO NOT AGREE TO THESE TERMS, YOU CANNOT ACCESS THIS TEST CYCLE. BY SIGNING OR CLICKING TO
ACCEPT THIS AGREEMENT, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS.
EXHIBIT A
THIS AGREEMENT (the “Agreement”) is made between Applause App Quality, Inc. (collectively with its
business unit uTest, “Company”) and YOU (hereinafter, the “Receiving Party”), a community tester of
Company as of this day (the “Effective Date”).
WHEREAS, Company has engaged Receiving Party to provide certain services relating to the testing of its and
its customer’s technology (the "Services"), and Receiving Party has agreed to provide such Services;
WHEREAS, in connection with the performance of Services, Receiving Party will acquire information that is
confidential and proprietary to Company (as defined below, the “Confidential Information”);
WHEREAS, Receiving Party and Company desire to set forth Receiving Party’s nondisclosure and
confidentiality obligations with respect to the Confidential Information; and
WHEREAS, Receiving Party shall acknowledge its acceptance to the terms and conditions of this Agreement
(which is required before Receiving Party is allowed to provide such Services to Company) by either clicking
its acceptance thereto as specified in Company’s platform (in which case the signature block at the end does
not need to be signed), or by executing this Agreement directly with Company via the signature block at the
end.
1. Definitions
A. As used in this Agreement, “Confidential Information” means all information, regardless of the form
in which it is transmitted, pertaining to Company (or another party whose information Company has in its
possession under obligations of confidentiality) past, present, or future (i) internal matters, (ii) research
(including any information obtained through the newsgathering process), development, or business plans,
(iii) operations or systems (including, without limitation, financial data, studies and reports, software,
memoranda, drafts, and other information in either tangible or intangible form); (iv) information relating to
subscribers (including, but not limited to, any information contained in Company’s subscriber records); (v)
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information relating to users of Company’s website, platform, application or any other website, platform or
application under Company’s control (including but not limited to any applications of customers of Company
which are specified in test cycles as well as any applications which are related, directly or indirectly, to such
applications (i.e. regardless of whether they are referenced under the same or under a different name) and
(vi) any other information designated by Company as confidential and/or proprietary, or which would be
deemed confidential to a reasonable person regardless of such designation. Information shall not be deemed
confidential or proprietary for purposes of this Agreement, and Receiving Party shall have no obligation with
respect to any such information, which: (a) is already known to Receiving Party at the time of its disclosure;
(b) is or becomes publicly known through no wrongful act of Receiving Party; (c) is received from a third party
without similar restrictions and without breach of this Agreement; (d) is independently developed by
Receiving Party; or (e) is lawfully required to be disclosed to any governmental agency or is otherwise
required to be disclosed by law (as long as Receiving Party has acted in accordance with Paragraph 2.A).
B. “Confidential Materials” shall mean all tangible materials containing Confidential Information,
including without limitation, written or printed documents, electronically-transmitted material, and
computer disks or tapes, whether machine or user readable. All Confidential Information and Confidential
Materials are and shall remain the property of Company. By disclosing information to Receiving Party,
Company does not grant any express or implied right to Receiving Party patents, copyrights, trademarks, or
trade secret information.
A. Receiving Party shall not disclose any Confidential Information to third parties at any time following
its disclosure by Company to Receiving Party, except to Receiving Party's consultants as provided below.
However, Receiving Party may disclose Confidential Information in accordance with judicial or other
governmental order, provided Receiving Party shall give Company reasonable notice prior to such disclosure
such that Company may seek an appropriate protective order or the like, and comply with all applicable
protective orders (or equivalent).
B. Receiving Party shall take reasonable security precautions, at least as great as the precautions it
takes to protect its own confidential and proprietary information, to keep confidential the Confidential
Information. Receiving Party may disclose Confidential Information or Confidential Material only to Receiving
Party's employees or consultants on a need-to-know basis. Receiving Party shall execute or shall have
executed appropriate written agreements with its employees and consultants sufficient to enable it to
comply with all the provisions of this Agreement.
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D. Receiving Party shall not publicize or disclose beyond those persons to whom Confidential
Information may be disclosed hereunder the discussions that give rise to this Agreement without the prior
written consent of Company.
A. Receiving Party shall return all originals, copies, reproductions and summaries of Confidential
Information or Confidential Materials at Company's request, or at Company's option, certify destruction of
same.
B. Receiving Party acknowledges that Company shall be entitled, without waiving any other rights or
remedies, and without the need to post a bond, to such injunctive or equitable relief as may be deemed
proper by a court of competent jurisdiction in the event of any breach or threatened breach of the provisions
of this Agreement.
C. Receiving Party shall indemnify and hold Company, its parent, and each of their officers, directors,
employees, agents, and licensees harmless from and against any loss, claim, damage, liability, costs, and
expenses (including reasonable attorneys’ fees) that in any way arise out of or result from a breach or alleged
breach of any of the provisions of this Agreement. Company shall have sole authority to (i) choose outside
counsel to defend any suit relating to the foregoing, and (ii) control and manage such outside counsel, the
litigation, and any settlement. In addition, Receiving Party shall provide Company with all assistance
requested by Company (including all relevant documentation and information) and otherwise cooperate with
Company in connection with any claim or litigation.
D. Receiving Party acknowledges and agrees that: (i) Company is providing one or more
hardware devices (“Hardware”) for testing purposes that contains the Confidential Information and
Confidential Materials of Company’s client (potentially also including pre-release intellectual property); (ii)
the unauthorized access or disclosure of such Hardware or the failure to return it to Company as and when
required could result in significant legal implications for Company (“Legal Claims”); and (iii) as the result of
such Legal Claims, Company will pursue its rights and remedies against Receiving Party to the fullest extent of
the law (which Receiving Party understands will include financial restitution and criminal charges in
connection with the Legal Claims as well as remedies for breach of Company’s Tester Terms and Conditions).
E. Receiving Party acknowledges and represents and warrants that with respect to such
Hardware, Receiving Party must return the Hardware to Applause within X days of completion of the testing
cycle. Failure to return the Hardware subject to Applause’s directions will result in breach of contract.
Applause will have the right to pursue all rights and remedies in a court of law in connection with any Legal
Claims for Receiving Party’s failure to return the Hardware in a timely fashion.
4. Independent Contractor. Nothing in this Agreement shall be construed to constitute either party
hereto as a partner, joint venturer, agent or employee of any other party, nor shall either party have the
authority to bind the other in any respect, it being intended that each party shall remain an independent
contractor responsible for its own actions.
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5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and each of their respective successors and assigns. No party hereto may assign its rights or
obligations hereunder without the prior written consent of all other parties hereto. Any assignment in
contravention of this provision shall be void.
6. Entire Agreement; Amendment. This Agreement represents the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior
oral and written and all contemporaneous oral negotiations, commitments and understandings between
such parties with respect to the subject matter hereof. This Agreement may be modified or amended only by
a written instrument executed by all parties hereto.
7. Severability. Any provision of this Agreement which is invalid, illegal or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or
rendering that or any other provision of this Agreement invalid, illegal, or unenforceable in any other
jurisdiction.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts without regard to its provisions regarding conflicts of law and each
party hereby agrees to venue in Cambridge, Massachusetts to resolve any disputes hereunder.
9. Section Headings. The section headings are for the convenience of the parties and in no way alter,
modify, amend, limit, or restrict the contractual obligations of the parties.
10. Waivers. No delay or omission on the part of either party to this Agreement in requiring
performance by the other party hereunder, or in exercising any right hereunder, shall operate as a waiver of
any provision hereof or of any right or rights hereunder; and the waiver or omission or delay in requiring
performance or exercising any right hereunder on one occasion shall not be construed as a bar to or waiver
of such performance or right, or of any right or remedy under this Agreement, on any future occasion.
11. Notice. Any notices or other communications required or permitted hereunder shall be sufficiently
given if delivered personally or sent by overnight mail or registered or certified mail, postage prepaid,
addressed as follows or to such other address of which the parties may have given notice:
To Company: uTest, Inc., 100 Pennsylvania Avenue, Suite 500, Framingham, MA 01701
Unless otherwise specified herein, such notices or other communications shall be deemed received (a) on the
date delivered, if delivered personally or by overnight mail, or (b) three business days after being sent, if sent
by registered or certified mail.
12. Survival. The provisions of paragraphs 2, 3, 4, 5 and 10 shall survive the termination or expiration of
this Agreement.
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13. Term. This Agreement shall remain in full force and effect so long as Receiving Party continues to
provide the Services for Company.
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