Terms of Service
1. Introduction
These Terms of Service, together with TheTestMart’s Privacy Policy (as defined below) (collectively, “TOS”), govern Customer’s access to, and use of TheTestMart’s (i) website available at https://www.thetestmart.com/ and its subdomains (“Website”), and (ii) Services (defined below).
“TheTestMart” means the entity specific in the applicable Order (as such term is defined below), or otherwise TheTestMart Inc. and/or any of TheTestMart’s affiliates, including without limitation, 360 Testing Ltd.
“Customer” means, as applicable, you, the entity on whose behalf you are agreeing to the TOS, or the entity identified in the applicable Order (as such term is defined below). You represent and warrant that you have full legal authority to bind Customer to the TOS.
2. Acceptance of these TOS
BY ACCESSING AND USING THE WEBSITE AND/OR ANY SERVICES (AS SUCH TERM IS DEFINED BELOW) AND/OR BY ENTERING INTO AN ORDER (AS SUCH TERM IS DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THESE TOS, INCLUDING THE TERMS OF THE PRIVACY POLICY, AND EXPRESSLY AGREES TO BE LEGALLY BOUND BY THESE TOS. IF CUSTOMER DOES NOT AGREE TO THESE TOS, CUSTOMER SHALL NOT VISIT THE WEBSITE, SHALL NOT ENTER INTO AN ORDER, AND SHALL NOT USE ANY SERVICES. CUSTOMER ACKNOWLEDGES THAT THESE TOS CONSTITUTE A BINDING AND ENFORCEABLE LEGAL CONTRACT BETWEEN THETESTMART AND CUSTOMER.
The TOS take effect on the earlier of: (i) Customer’s visit to the Website, (ii) Customer’s sign-up to the Services, or (iii) the effective date stipulated on a written order or quote for the Services executed between the Customer and TheTestMart (“Order”). All Orders form part of these TOS. Where there is a conflict between the documents forming the TOS, the precedence of the documents with respect to that conflict shall be: the Privacy Policy, the applicable Order, and these TOS.
The website and services are available only to individuals who (a) are at least sixteen (16) years old; and (b) possess the legal capacity to enter into these TOS (on behalf of themselves and their organization) and to form a binding agreement under any applicable law. The Customer hereby represents that the Customer possess the legal authority to enter into the TOS.
Customer may access and use the Services and the Website solely subject to and in accordance with the TOS, unless Customer and TheTestMart have executed a separate agreement in writing, signed by both parties which expressly supersedes these TOS. For the avoidance of doubt, any terms added by Customer to an order form or quote do not constitute part of an Order. Customer will comply with all applicable laws, rules, and regulations in connection with Customer’s use of the Services and the Website. Although the Website and the Services may be accessible worldwide, TheTestMart makes no representation that materials contained therein are appropriate or available for use in any particular jurisdiction and accessing them from jurisdictions where their contents are illegal is prohibited.
To the extent that the Order sets forth a right to use the Services by the Customer’s Affiliates, Customer shall: (i) provide each such Affiliate with a copy of these TOS; (ii) ensure that each such Affiliate complies with the terms and conditions therein; and (iii) be responsible for any breach of these
TOS by any such Affiliate. For purposes of this Agreement, “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with you, where “Control” means ownership, directly or indirectly, of 50% or more of the voting interest
3. The Services
The “Services” include TheTestMart’s automated platform for authoring of software quality tests, cross-browser execution environment for the authored tests, and any other products or services provided by TheTestMart from time to time through the Website or otherwise, and all updates, upgrades and enhancements thereto (collectively, the “Platform”). To use the Services, Customer must maintain a proper, high-speed internet connection to connect Customer’s network to the Services and may be required to install a plugin or SDK software (the “Plugin”) and a command line interface tool (“CLI”). Use of the Services is restricted to such specific user(s) (each, a “Permitted User”), number of total Executions per month (the “Execution Limitation”) and to the number of cross-browser parallel Executions (“Parallel Executions Limitation”), as set forth in the applicable Order (Customers which use the Services under the “Community Free” plan, have an Execution Limitation of 1,000 and Parallel Executions Limitation of 1, serial execution, on Chrome browser only).
“Execution” means a single test execution using TheTestMart’s Platform or CLI. The calculation of the Execution Limitation entitled to a Permitted User will be made in the aggregate with respect to all Executions licensed to Customer. For instance, if Customer has licensed four Executions, then a single Permitted User may use all four Executions, provided that no Executions are being used by any other Customer Permitted User. If Customer exceeds the Execution Limitation, Customer will be required to upgrade its license to cover the extra Executions and/or will be charged overage fees as specified in the relevant Order
The “Website” provides comprehensive information regarding TheTestMart and enables Customers to log-in to the Services.
The Website and/or Services also provide resources such as whitepapers, and may include any other content related thereto such as contact information, videos, text, logos, button icons, images, data compilations, links, other specialized content, technical data, documentation, know-how, specifications materials, designs, data, the “look and feel” of the Website and/or Services, algorithms, source and object code, interface, GUI, interactive features related graphics, illustrations, drawings, animations, and other features obtained from or through the Website and/or Services (collectively, the “Content”).
ALL RIGHTS IN AND TO THE CONTENT AVAILABLE ON THE WEBSITE AND/OR SERVICES ARE RESERVED TO TheTestMart. TO THE EXTENT LEGALLY PERMISSIBLE, THE WEBSITE AND/OR PLATFORM AND THE CONTENT AVAILABLE THEREIN ARE PROVIDED ON AN “AS IS” BASIS.
THETESTMART WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS, INCURRED BY YOU OR ANY OTHER PERSON AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE AND/OR SERVICES AND/OR THE CONTENT AVAILABLE THEREIN. YOUR USE OF THE WEBSITE AND/OR PLATFORM AND/OR THE CONTENT IS ENTIRELY AT YOUR OWN RISK.
4. Customer Responsibility
To access and use the Services, Customer and/or Permitted Users must complete the registration process within the Website which requires Permitted Users to share with us certain User Data (as defined below), including their name, email address and password, or otherwise provide such details of existing third party services accounts (e.g., Github, Google, etc.) through which Permitted Users can login to the Services, all as further detailed in our Privacy Policy (“Account”). Customers and/or Permitted Users must provide accurate and complete information when creating an Account and agree to not misrepresent their identity or Account information.
At all times Customer shall be solely responsible for: (i) the activities of Permitted Users, (ii) the activities of unauthorized users that access the Services by way of Customer’s Account credentials, while engaged by Customer, and/or while using Customer’s premises or equipment, (iii) the accuracy of User Data, and (iv) for Customer Content (defined below), including without limitation the legality, accuracy and security of Customer Content. Customer must keep Account details, including Account access details, safe, secure and confidential at all times and shall immediately notify TheTestMart in the event that Customer becomes aware of any unauthorized access to the Account or any violation of the TOS. Customer hereby releases TheTestMart from any and all liability, losses and damages in connection with any unauthorized access or use of Customer’s Account and/or Customer Content.
The Customer shall have sole responsibility for the accuracy, quality and legality of the Customer Content and the means by which the Customer acquired the Customer Content. The Customer warrants and undertakes that the Customer Content has been collected, processed and transferred in accordance with the laws applicable to the Customer, including, if required by applicable law, that the Customer has received all required consents from the applicable data subjects.
“User Data” means any information relating to an identified or identifiable Customer (solely where the Customer is a natural person) and/or Permitted Users, such as name and email address, furnished to TheTestMart solely in connection with access and use of the Website and/or the Services.
“Customer Content” means collectively (i) User Data, (ii) code and other content uploaded or otherwise provided by Customer and Representatives in connection with the Services, and (iii) the results and outputs of the Services.
5. Customer Content
As between the parties, Customer or its licensors own all right, title and interest in and to the Customer Content. Customer consents to the access and use of Customer Content by TheTestMart and its third-party service providers to provide the Services and the Website, all in accordance with the TOS. In addition, unless stated otherwise in the Order, Customer grants TheTestMart the right to use
Customer’s name, mark and logo on the Website, in sales presentations, at trade shows, and in other marketing materials. TheTestMart may ask Customer to participate in marketing activities such as testimonials and webinars.
Customer is solely responsible for the legality and appropriateness of all Customer Content and for compliance with all laws and regulations applicable to Customer Content, including without limitation all applicable import and export, intellectual property, and privacy and data protection laws and regulations. Without derogating from the generality of the foregoing, Customer shall ensure that Customer Content: (i) is not defamatory, misleading, fraudulent, does not promote or facilitate illegal activity, and does not contain illegal content, (ii) does not distribute viruses, worms, Trojan horses, corrupted files, time bombs, hoaxes, or other items of a disabling, destructive, damaging, or deceptive nature, and (iii) does not disable, interfere with, or circumvent any part of the Website or Services. TheTestMart may, but is not obligated to, monitor Customer Content, and it is Customer’s sole responsibility to monitor all Customer Content to ensure that it complies with the TOS and applicable law, and Customer is solely responsible for properly handling and processing any communications sent to Customer alleging that Customer Content violates rights or otherwise is in breach of applicable law.
6. TheTestMart’s Ownership and License
TheTestMart and its licensors own and reserve all rights, title and interest in and to the Services, the Website and all of the content included therein, including without limitation to all of TheTestMart’s copyrights, trademarks, service marks, and logos, all enhancements, modifications and derivatives thereto, and all related worldwide intellectual property rights, whether registered or not and whether registerable or not evidenced by or embodied in and/or attached/connected/related to the Website and/or Services. Nothing in the TOS grants Customer any right to use any of TheTestMart’s intellectual property, including without limitation any of its copyrights, trademarks, service marks, or logos.
The Customer hereby acknowledges that TheTestMart is the sole owner of, and may collect, disclose, publish and use in any other manner for any legitimate business purpose, anonymous information which is derived from the Customer’s use of the Services (i.e., non-identifiable information, aggregated and analytics information).
In consideration for Customer’s ongoing compliance with the TOS and full and punctual payment of the Subscription fees (to the extent applicable), TheTestMart hereby grants Customer (i) a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the Services, solely for Customer’s internal business purposes; and (b) a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to install, use and operate the Plugin, solely in binary executable form, solely for Customer’s internal business purposes and solely for the purpose of using the Services (collectively, the “License”).
7. Personal Data
- TheTestMart respects its Website users’ and Permitted Users’ privacy and the privacy of all data subjects whose personal data may be included in the User Data, and is committed to protect their personal data shared with us, as further detailed in our Privacy Policy:
- Our policy and practices and the type of information collected with respect to personal data collected from, and processed with respect to, Website Users are described in detailed in our Privacy Policy at thetestmart.com/privacy-policy.
- Our policy and practices and the type of information collected with respect to personal data collected from, and processed with respect to, Permitted Users’ and Customer Content are described in detailed in our Privacy Policy at thetestmart.com/privacy-policy.
- In addition, when using our Website and Services, we may use ‘cookies’ and other similar tracking technologies, as detailed in our Cookie Policy at thetestmart.com/cookie-policy (collectively, the “Privacy Policy”).
- All of the abovementioned policies are incorporated herein by reference. Customers, Website users, and Permitted Users’ that intend to access or use the Website or Services must first read and agree to the applicable Privacy Policy.
- Customers hereby agrees, acknowledges and represents that: (a) it is prohibited from uploading to the Services or otherwise transfer the Company or expose the Company to any personal data relating to children under the age of 16 and/or “special categories of personal data” (as defined under applicable data protection laws) without the Company’s written prior approval; (b) to the extent that per the Company’s approval, the Customer transfers or exposes such data to the Company, then it is the Customer’s responsibility to ensure that such transfer is done in accordance with applicable privacy laws, including the GDPR, and where required, the Customer shall notify the Company prior to any such processing activities regarding any additional obligations that may impose on the Company with respect to such processing, if any; and (c) if required by applicable privacy laws, it was granted all applicable consents to process such data.
- These TOS incorporate TheTestMart’s GDPR Data Processing Addendum, available at:thetestmart.com/dpa (“DPA”), when the GDPR applies to your use of the Services to process Customer Content. Where the Customer intends to upload Customer Content which is subject to the GDPR, the Customer must notify TheTestMart of such, by informing TheTestMart’s sales representative team
8. Fees and Interest
Access to the Services is subject to a subscription to a payment plan, in accordance with TheTestMart payment model, or as otherwise provided to the Customer in an Order (“Subscription”).
Customer shall pay TheTestMart the fees as set forth in the relevant Order (“Fees”) within thirty (30) days of date of invoice, unless other payment terms are specified in such Order, in which case those terms shall prevail. Invoicing of the Order amount shall be done on or prior to the beginning of the Term (as such term is defined below) (“Invoice Period”) and shall be paid by Customer within thirty (30) days of date of invoice, unless other terms are specified in the Order, in which case such terms will prevail. All Fees are non-cancellable and non-refundable, except as expressly specified in these TOS. Accordingly, Customer is responsible for paying the full amount of the Fees for each Invoice Period, whether or not Customer actually uses the Services during all or part of such Invoice Period. Accruing from the due date of payment, TheTestMart is entitled to charge interest at the lower of: (i) 1% compounded interest per month, and (ii) the maximum interest rate permitted by applicable law.
Taxes. Fees do not include taxes, levies or duties of any nature. Customer is responsible for all applicable taxes (including without limitation all sales, use, shipment, value-added and other taxes), levies or duties arising in connection with the Services (except those assessable against TheTestMart based on its income) when invoiced by TheTestMart or will supply appropriate tax exemption certificates to TheTestMart in a form satisfactory to TheTestMart.
TheTestMart reserves the right to modify the fees and prices for its Services at any time and at its sole discretion. Such pricing changes will NOT affect the Customer’s remaining period of the then in-effect Term.
Payments of Subscription fees may be processed via certain online payment service providers, such as Stripe (“Online Payment Processors”). TheTestMart may add or change the Online Payment Processors in its sole discretion. The Online Payment Processors enable Customer to send payments securely online using a credit card, debit card or bank account. TheTestMart does not control and is not affiliated with such Online Payment Processors. These Online Payment Processors are independent contractor and have no employment or agency relationship with TheTestMart. TheTestMart is not responsible in any way for the actions or performance (or lack thereof) of the Online Payment Processors. The use of the Online Payment Processors is at Customer’s own risk. It is Customer’s responsibility to abide by all the terms specified by the Online Payment Processors in their terms of use and privacy policies. Customer acknowledges that it is fully assuming the risks of conducting any transactions via the Online Payment Processors.
9. Third Party Services
Certain parts of the Services may be provided by third party service providers (“Third Party Services”). Subject to applicable law, TheTestMart may, in TheTestMart’s sole discretion, retain and replace Third Party Services and third-party service providers from time to time.
10. Term
The License for the paid Services shall commence as of the starting date detailed in the applicable Order and will be in effect for the term specified in the Order (“Term”). At the end of each Term, the Services shall be automatically renewed for an additional Term, unless either party request otherwise in writing, such request shall be furnished no later than 30 days prior to the end of the respective Term. The Term for non-payment Services signed up for on the Website and not through an Order shall commence when Customer first accesses the Services via the Website, and shall continue until terminated by either Party in accordance with Section 11 below.
11. Termination of the Services
Customer may terminate the Services by providing written notice to TheTestMart at legal@thetestmart.com. Once written notice is received, termination will take effect upon the last day of the Term, unless provided otherwise in the applicable Order in which case such provisions will prevail. Notwithstanding any other term in the TOS, TheTestMart may terminate non-payment Services at any time and for any reason. In addition, TheTestMart may terminate provision of the Website and/or Services immediately and without liability upon providing notice to Customer: (i) if TheTestMart believes that Customer has violated any provision of the TOS or applicable law, (ii) if TheTestMart is threatened with a legal claim related to the provision of the Website and/or Services, (iii) if TheTestMart’s relationship with a third party service provider terminates or requires TheTestMart to modify, suspend or terminate the Website and/or Services, (iv) if TheTestMart believes providing the Website and/or Services could create a substantial or unreasonable economic or technical burden or security risk, (v) in order to comply with applicable law or requests of governmental or administrative entities, or (vi) if TheTestMart determines that the use of the Website and/or Services by Customer or TheTestMart’s provision of any of the Services has become impractical or unfeasible. Without limiting the foregoing, TheTestMart reserves the right, at its sole discretion, at any time to modify, improve, correct or discontinue, temporarily or permanently, the Services or any part thereof, with or without notice. If TheTestMart in its discretion chooses to cease providing the current version of the Website and/or Services or any of its features and/or specific functions, whether through discontinuation of the Website and/or Services or by upgrading or downgrading the Website and/or Services to a newer version, Customer may not be able to continue using the previous version of the Website and/or Services. Customer understands and agrees that features and/or functions of previous Services versions might be removed in future versions thereof, and that TheTestMart shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Services. The sole remedy of Customer in the event of termination by TheTestMart in accordance with this Section 11 is to receive a pro-rated refund of any pre-paid Fees for the remainder of the applicable Term.
12. Effect of Termination
Upon termination of the Term or the provision of the Website and/or Services, Customer’s License will end, all of Customer’s rights to use the Website and/or Services shall terminate, and Customer will no longer have access to any Customer Content and/or evaluations, tests, test results, electronic communications and/or data that was posted, uploaded or otherwise transmitted to the Services. TheTestMart shall maintain Customer Content for 30 days and shall permit Customer to have limited access to the Platform solely for downloading and deleting any Customer Content. Thereafter, TheTestMart will delete any applicable Customer Content. The provisions of these TOS that, by their nature and content, must survive the termination of these TOS in order to achieve the fundamental purposes of these TOS shall so survive. Without limiting the generality of the forgoing, the provisions of Customer Responsibility, Customer Content, TheTestMart’s Ownership, Responsibility for Customer Content, Fees and Interest, Termination of the Services, Representations and Warranties, Open Source Software, Use Restrictions, Suggestions, Third Party Links, Confidentiality, Disclaimer of Warranties, Limitation of Liability and Indemnification shall survive termination of the provision of the Website and/or Services for any reason.
CANCELLING OR TERMINATING THE ACCOUNT MAY CAUSE THE LOSS OF CERTAIN INFORMATION YOU PROVIDED TO THETESTMART (INCLUDING THE CUSTOMER CONTENT) AND/OR THE CAPACITY OF THE ACCOUNT. THETESTMART DOES NOT ACCEPT ANY LIABILITY FOR SUCH LOSS.
13. Representations and Warranties
Customer represents and warrants to TheTestMart that: (i) Customer has the requisite power and authority to enter into the TOS and to perform all of its obligations under the TOS, (ii) all Account information Customer has provided TheTestMart for the purpose of receiving the Services is complete and accurate, and Customer shall update its Account information to maintain the completeness and accuracy thereof throughout the Term, (iii) if Customer makes use of software not provided by TheTestMart, Customer has a valid written license agreement permitting Customer to use such software in connection with the Services and Customer shall bear all liability for all damage in connection with Customer’s use of any such software, including damage to the Services, (iv) Customer is and will remain throughout the Term in compliance with all applicable law, including without limitation all applicable data protection, privacy, and intellectual property laws, relating to its use of the Customer Content, Services and Website, and (v) Customer shall not allow the use of and/or access to the Services by third parties or anyone other than its employees whose duties require such access or use and its authorized consultants and subcontractors (excluding any direct competitors of TheTestMart), while such access will be permitted only where such use is required as part of their performance of services on the Customer’s behalf; and (iv) Customer shall bear full responsibility for any harm caused to TheTestMart for breach of the terms of the license by Customer’s Permitted Users.
TheTestMart represents and warrants to Customer that TheTestMart has the requisite power and authority to enter into the TOS and to perform all of its obligations under the TOS.
14. Use restrictions
Customer may use the Website and/or Services solely for its own internal use and as expressly permitted by the TOS. Customer shall not, will not attempt to, and will not allow third parties to: (i) modify, alter, tamper with, repair, or create derivative works of any part of the Website and/or Services, (ii) reverse engineer, disassemble, decompile, or translate the Website and/or Services or apply any other process or procedure including for the purpose of deriving or attempting to derive the source code of any software included in the Website and/or Services, (iii) create multiple Accounts to simulate or act as a single Account or otherwise access the Services in a manner intended to avoid incurring Fees or otherwise breach the TOS, (iv) resell, sublicense, or otherwise allow a third party’s access to the Services, (v) copy any ideas, features, functions or Content of the Website and/or Services, or use the Website and/or Services to create a competitive product or service, (vi) remove, alter or obscure any identification, attribution, or other proprietary notices contained on or within the Services or the Website, (vii) monitor the Website and/or Services for any purpose, including without limitation its availability, performance or functionality, (viii) gain or attempt to gain unauthorized access to TheTestMart’s systems or network, (ix) publish, post, upload or otherwise transmit to the Website and/or Services any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information or property, or (x) publish or disclose to any third party any reviews, testing information or comparisons with respect to the Service without the Company’s prior written consent. Customer shall be fully responsible for its Permitted Users’ adherence to the TOS. As a condition to making the Services available to Customer, Customer undertakes that it will not assert, authorize, assist or encourage any third party to assert against TheTestMart or its licensors, affiliates or users, any infringement or other claim in connection with the Website and/or Services. Except for the express rights granted herein, TheTestMart does not grant, and Customer does not receive, any other rights, express or implied.
15. Suggestions
Should Customer provide TheTestMart with any ideas, feedback or suggestions regarding the Services and/or the Website (“Suggestions”), including without limitation in connection with bug fixes or improvements, TheTestMart will irrevocably own all right, title and interest in and to the Suggestions and will be free to use the Suggestions without any liability or payment to Customer, without notifying Customer, and without Customer’s prior written consent. Customer hereby irrevocably assigns to TheTestMart all right, title and interest in and to all Suggestions and agrees to provide TheTestMart with such reasonable assistance required in order to document, perfect and maintain TheTestMart’s rights in and to the Suggestions, at TheTestMart’s cost.
16. Third Party Links
The Website may include references and/or hyperlinks links to information, websites, documents, software, materials, products, promotions and/or services provided by third parties (“Third–Party Links”). TheTestMart has no control over, makes no effort to review the content of, and assumes no responsibility for, the content, privacy policies, terms of use, or practices of any third parties or Third-Party Links. Any Third-Party Link that Customer acquires, uses, or accesses, and any exchange of data between Customer and such third party, is solely between Customer and the third party.
17. Third Party Links
Each party agrees to keep confidential and to use only for purposes of performing its obligation under the TOS, any proprietary or confidential information of the other party disclosed pursuant to the TOS which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure or which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). Customer acknowledges that the Fees, the Services, the software contained in the Services including the results of any performance tests of the Services or software, and any third-party data or information disclosed by or on behalf of TheTestMart to Customer in connection with the Services shall be deemed to be TheTestMart’s confidential information.
18. Services Warranty
TheTestMart warrants throughout the Term, the Service, if operated as directed by TheTestMart in writing, shall operate substantially in accordance with the functionalities provided by TheTestMart to Customer in writing (“Services Warranty”). TheTestMart’s sole liability for any breach of the Services Warranty by TheTestMart shall be for TheTestMart to make reasonable commercial efforts to repair the non-conforming functionality of the Services that does not meet the Services Warranty, within reasonable time. The Services Warranty applies only with respect to failures in operation of the Services that are reproducible in standalone form, and the Services Warranty does not apply if the failure to meet the Services warranty is caused by: (i) faulty usage or set-up, (ii) alterations undertaken without TheTestMart’s prior written consent, (iii) a version of the Services that is not the current version of the Services, (iii) a combination, operation or use of the Services with software, hardware or other materials not licensed under the TOS, (iv) the Services being operated or used in violation of the TOS or its documentation. The sole remedy of Customer in the event of failure to uphold the Services Warranty is to terminate the Services and receive a pro-rated refund of pre-paid Fees for the remainder of the applicable Term, in accordance with Section 10 above.
19. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SPECIFIED IN THE TOS, THE WEBSITE AND THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THETESTMART, ITS LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, MAKE NO EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND IN CONNECTION WITH THE WEBSITE OR THE SERVICES OR THE THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR GUARANTEE THAT THE WEBSITE OR THE SERVICES OR THE THIRD PARTY SERVICES WILL BE UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, OR SECURE, OR THAT ANY TESTING OR VERIFICATION DATA OR RESULTS WILL EFFECTIVE, ACCURATE, RELIABLE, SECURE AND NOT LOST OR DAMAGED. THE WEBSITE AND THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS, OR BUGS, VIRUSES, TROJAN HORSES OR THE LIKE. IN ADDITION TO OTHER THIRD PARTIES PROVIDING THIRD PARTY SERVICES, THETESTMART USES, OR MAY USE, THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RUN THE SERVICES AND THETESTMART ALSO MAKES NO WARRANTIES WITH RESPECT TO SUCH THIRD PARTY SERVICES AND THETESTMART SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTIES OR THIRD PARTY SERVICES. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, THETESTMART DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THE RISKS INHERENT IN INTERNET CONNECTIVITY, COMPUTER NETWORKS, AND TELECOMMUNICATIONS FACILITIES THAT COULD RESULT IN THE LOSS, COMPROMISE, DEGRADATION, INTERCEPTION, MONITORING AND/OR OTHER UNAUTHORIZED ACCESS OF CUSTOMER’S OR THIRD PARTIES’ PRIVACY, DATA, RESULTS, CONFIDENTIAL INFORMATION AND PROPERTY, AS WELL AS THE RISKS ASSOCIATED WITH AUTOMATED TESTING AND VERIFICATION SERVICES, INCLUDING WITHOUT LIMITATION THE RISK THAT RESULTS COULD BE INACCURATE OR IRRELEVANT. THE USE OF THE WEBSITE AND THE SERVICES IS DONE AT CUSTOMER’S SOLE DISCRETION AND RISK AND WITH CUSTOMER’S AGREEMENT THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE, INCLUDING WITHOUT LIMITATION TO COMPUTER SYSTEMS AND LOSSES OF DATA, THAT MAY RESULT FROM SUCH ACTIVITIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED FOR USE IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE USE OF OR FAILURE OF THE SERVICES COULD LEAD OR CONTRIBUTE TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
20. Limitation of Liability
IN NO EVENT SHALL THETESTMART, ITS LICENSORS, OFFICERS, DIRECTORS, ADVISORS, REPRESENTATIVES, RESELLERS OR THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA OR RESULTS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING WITHOUT LIMITATION CONTRACT OR TORT), EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANY OTHER PROVISION IN THE TOS, THE MAXIMUM AGGREGATE LIABILITY OF THETESTMART, AND ITS LICENSORS, OFFICERS, DIRECTORS, ADVISORS, REPRESENTATIVES, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, TO CUSTOMER AND ALL THIRD PARTIES, UNDER ANY CAUSE OF ACTION, SHALL NOT EXCEED THE FEES ACTUALLY RECEIVED BY THETESTMARTFROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THIS FOREGOING LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THE TOS AND ABSENT SUCH LIMITATION THETESTMART WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THE TOS WITH CUSTOMER. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
21. Indemnification
Customer will defend, indemnify, and hold harmless TheTestMart and its licensors, officers, directors, advisors, representatives, resellers and Third Party Service Providers, from and against any claims, damages, losses, liabilities, costs, fines and expenses (including attorneys’ fees) arising out of or relating to: (i) Customer’s actual or alleged breach of any provisions of the TOS or any applicable law, (ii) any activity held under Customer’s Account, including by unauthorized third parties, (iii) Customer’s use of other software or applications with the Services or Website, and (iv) Customer Content and/or the combination of Customer Content with other applications, content or processes, including any claim involving actual or alleged infringement or misappropriation of third party rights arising out of or in connection with Customer Content and including any actual or alleged claim that appropriate consents were not obtained from data subjects to the collection or processing of their personal data. TheTestMart shall notify Customer of any claim subject to indemnification, provided that TheTestMart’s failure to do so shall not affect Customer’s obligations hereunder, except to the extent that TheTestMart’s failure to promptly notify Customer materially delays or prejudices Customer’s ability to defend the claim. At TheTestMart’s option, Customer will have the right to defend against any such claim with counsel of Customer’s choosing (subject to TheTestMart’s written consent) and to settle such claim as Customer deems appropriate, provided that Customer shall not enter into any settlement without TheTestMart’s prior written consent and provided that TheTestMart may at any time elect to take over control of the defense and settlement of the claim upon written notice to Customer.
TheTestMart will defend, indemnify, and hold harmless Customer and its subsidiaries, licensors, officers, directors and representatives from and against any third party claims, damages, losses, liabilities, costs, fines and expenses (including reasonable attorneys’ fees) directly arising out of: (i) TheTestMart’s breach of any representations and warranties of the TOS or any applicable law, and (ii) a claim that the Services, Websites or performance of these Terms violate third party intellectual property rights.
22. Force Majeure
In the event that either party shall be delayed or prevented from the performance of any obligation hereunder by reason of strike, labour trouble, inability to procure materials, power failure, government or judicial order, riot, insurrection, declared or undeclared war, terrorist act, weather or other Act of God, or any other reason beyond such party’s control, then performance of such party’s obligations under the TOS shall be excused for the period of such delay. The party affected by Force Majeure shall provide notice to the other party of the commencement and termination of the Force Majeure. In any event, the Customer will make best effort to make payments on a timely basis to TheTestMart, and any delay will not in any way relieve Customer from any of its obligations with respect to the payment of Fees.
23. No Third-Party Beneficiary
The TOS does not create any third-party beneficiary rights in any individual or entity that is not a party to the TOS.
24. Changes.
TheTestMart may update these TOS from time to time. TheTestMart will notify Customer of material changes to these TOS by email, by posting notice of the update on the Website, or by any other reasonable means. Such material changes will take effect seven (7) days after such notice was provided on our Website or sent via e-mail, whichever is the earlier. Otherwise, all other changes to these TOS are effective as of the stated “last revised” and your continued use of the Website and/or Services on or after the last revised date will constitute acceptance of, and agreement to be bound by, those changes. In the event that the terms should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.
25. Miscellaneous
The TOS constitutes the entire agreement between Customer and TheTestMart. The TOS shall be governed by the internal laws of the State of California without regard of its conflict of laws rules, and the parties hereby submit to the exclusive jurisdiction of the courts of San Francisco, California in connection with any dispute in connection with the TOS, provided that TheTestMart shall be entitled to institute an action in any court of competent jurisdiction to obtain injunctive relief or otherwise protect or enforce its intellectual property rights or interests. The TOS will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. All rights are cumulative. The rights and obligation under the TOS may not be assigned by either party without the written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed, provide however, that no consent shall be required for a transfer to an Affiliate of a party or in connection with a change of Control of a party. No delay or failure to take any action with respect to any breach of the TOS shall constitute a waiver of such breach or any subsequent or other breach. All waivers must be in writing to be effective. If any provision of the TOS is declared invalid or unenforceable, the remaining provisions of the TOS shall not be affected thereby and shall remain in full force. For any questions, please get in touch with TheTestMart at: legal@thetestmart.com.