Last Updated: 1st June 2021
THESE Terms of Service (the “Terms”) govern access to and/or use of TestSoothe Services as defined below.
THESE Terms constitute a binding agreement between TestSoothe, (“TestSoothe”, “we” or “us”); and Individuals or entities who purchase TestSoothe Services (“Subscription”) or create an Account (“Account”) for free or for trial and their authorized users (Collectively “Customers”, “you” or “your”). Customers and TestSoothe are each a “Party” and collectively the “Parties”.
By accessing or using TestSoothe Services, you accept and agree to abide by these Terms. If you are accessing or using TestSoothe Services on behalf of an organization or legal entity, you are agreeing to the Terms for that organization (in which event, “you”, “your” or “Customer” will refer to that organization or legal entity) and representing to TestSoothe that you have the authority to bind that organization or legal entity to the Terms unless that organization has a separate written contract in effect with us (an “Agreement”), in which event the Agreement shall govern your use of the TestSoothe Services; provided that if there is any conflict between these Terms and an Agreement, the provisions of the Agreement shall prevail. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT ACCESS OR USE TESTSOOTHE SERVICES.
We may, in our sole discretion, modify the Terms via email or by posting notice on any part of the TestSoothe Services. The “Last Updated” date at the top the Terms indicates when the latest modifications were made to the Terms. The then-current version of the Terms will supersede all earlier versions. By continuing to access and use TestSoothe Services, you agree to any such modifications.
If you have any comments or questions regarding the Terms, or wish to report any violation of the Terms, you may contact us at email@example.com.
TestSoothe is a cloud hosted, platform and service that enable customers to test their websites and mobile applications across wide range of web browsers, operating systems and virtual or physical device environments. (“TestSoothe Services”). TestSoothe Services shall also include a) the service or providing any corresponding APIs, documentation or software that may be made available by TestSoothe in connection with such Service; b) any onboarding assistance provided; and c) subsequent enhancements, updates and bug fixes to the foregoing made generally available by TestSoothe to its Customers.
“Account-Related Information” means contact information and biographical information about Customer and/or Customer’s representatives used to access TestSoothe Services.
“Customer Content” means (i) data or content in the Customer Properties that Customer chooses to test; (ii) data Customer submits or creates as part of a test, including test scripts and Screenshots; and (iii) any other data Customer submits to TestSoothe in connection with the use of the Services (not including Account Related Information).
“Customer Property” means a website or mobile application submitted to the Services for testing.
“Claims” mean, collectively, claims, demands, suits, losses, damages, liabilities, costs, actions, judgments, and expenses (including reasonable attorney’s fees).
“Documentation” means the technical user documentation provided on Website or within TestSoothe Services.
“Intellectual Property Rights” means all forms of intellectual property rights and protections, now known or hereafter established, that may be obtained for, or may protect, technology or other assets, which includes, but is not limited to, all right, title, and interest in patents and patent applications; trade secret and nondisclosure rights; copyrights and authors’ rights; and trademarks, service marks, trade names, product names, and brand names.
“Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data disclosure, data security, international communications, and cross-border data transfers.
“Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, government identification card number, passport number, or other similar identifiers; or (ii) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy or data security Law.
2. TestSoothe Services
(a) Subject to these Terms, TestSoothe will provide the TestSoothe Services to Customers in accordance with each Customer’s subscription plan. TestSoothe grants to each Customer a limited non-exclusive, non-transferrable, world-wide right and license during the Term, solely for its internal business purposes and in accordance with the Documentation, to: (a) use the TestSoothe Services; (b) implement, configure, and, through its Account Administrator(s), permit its Permitted Users to access and use the TestSoothe Services up to any applicable limits or maximums; and (c) access and use the Documentation.
(b) You represent and warrant that you are of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms. You acknowledge that you are not permitted to use the TestSoothe Services otherwise.
(c) Customer may assign and expressly authorize a Permitted User(s) as its agent to manage Customer’s Account, and management of Customer’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s).
(d)Except as expressly specified in the Terms, you will not (and you will not permit any third party to): (i) rent, lease, provide access to, resell, or sublicense the TestSoothe Services to a third party or provide the TestSoothe Services to a third party as a managed service; (ii) use the TestSoothe Services to provide, or incorporate the TestSoothe Services into, any product or service provided to a third party; (iii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the TestSoothe Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to TestSoothe); (iv) copy or modify the TestSoothe Services or any Documentation, or create any derivative work from any of the foregoing; (v) remove or obscure any proprietary or other notices contained in the TestSoothe Services (including any reports or data printed from the TestSoothe Services); (vi) frame and/or utilize framing techniques to enclose any trademark, logo, and/or other portion of the TestSoothe Services (including images, texts, page layout, form); (vii) use any metatags and/or other “hidden texts” using TestSoothe’s name and/or trademarks; (viii) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable and/or disproportionately large load on our (and/or our third party providers’) infrastructure and platform; (ix) use the TestSoothe Services for any unlawful purpose and/or to violate any federal, state or international law; (x) run any form of auto-responder and/or “spam” on the TestSoothe Services; and (xi) download of install software applications not intended for testing e.g. bitcoin mining, gaming servers and other illegitimate activities.
(e) If you violate the Terms, we may terminate your Account immediately. If we suspend or terminate your Account, you may not subscribe under a new Account unless specifically allowed by us. You agree that TestSoothe shall not be liable to you or to any third party for any suspension and/or termination of your Account or any refusal of access.
2.2. Target Availability
TestSoothe will use commercially reasonable efforts to make the Services available with uptime of 99.8% for each calendar month (“Target Availability”). The calculation of uptime will not include unavailability to the extent due to: (a) use of any Service by Customer in a manner not authorized in this Terms or the applicable Documentation; (b) general Internet problems, Force Majeure Events or other factors outside of TestSoothe’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) TestSoothe’s scheduled maintenance or reasonable emergency maintenance. “scheduled maintenance” means routine maintenance for which TestSoothe notifies Customer at least two (2) days in advance.
TestSoothe provides break-fix support to its customers using automated (web+mobile) and manual tests that are done on TestSoothe Services or integrations supported on the TestSoothe Services. TestSoothe does not assist in writing tests or debugging new tests. TestSoothe may require the Customer, in order to provide appropriate support, to demonstrate the same test or share sample test script.
TestSoothe provides 24x5 (from 00:00 hrs Monday through 23:59 hrs Friday UTC+1) Support to Customers only over chat / emails with target first response within 24hours during the above Support window. TestSoothe will have no obligation to provide Support to the extent an Incident arises from (a) use of the Services by Customer in a manner not authorized in the Terms or the applicable Documentation; (b) general Internet problems, Force Majeure Events or other factors outside of TestSoothe’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; or (d) third party systems, acts or omissions.
2.4. Permitted Users
Access to and/or use of TestSoothe Services is permitted only to Customers and employees, contractors and Affiliates of the Customer (“Permitted Users”). Customer may permit individuals serving as its independent contractors and consultants who are not competitors of TestSoothe (“Contractors”) and individual employees, Contractors, or consultants of Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate Permitted User with the Terms and any such use of the TestSoothe Services by such Contractor or Affiliate Permitted User is for the sole benefit of the Customer. “Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
2.5. Trial Access
If Customer receives free access or a trial or evaluation subscription to paid TestSoothe Services (“Trial Access”), then Customer may use the paid TestSoothe Services in accordance with the Terms for a period of seven (7) days or such other period granted by TestSoothe (the “Trial Period”). Trial Access is permitted solely for Customer’s use to determine whether to purchase a paid subscription of the TestSoothe Services. Certain Trial Access may include pre-release and beta services or components (“Beta Releases”). Trial Access may not include all functionality and features accessible as part of a full paid Subscription. If Customer does not purchase a paid subscription, the Terms and Customer’s right to access and use the paid TestSoothe Services will terminate at the end of the Trial Period and customer may be moved to free TestSoothe Services. TestSoothe has the right to terminate a Trial Access at any time for any reason. AT THE END OF THE TRIAL ACCESS, ALL CUSTOMER CONTENT MAY BE PERMANENTLY LOST UNLESS THE CUSTOMER: (a) PURCHASES A PAID SUBSCRIPTION TO TESTSOOTHE SERVICES THAT IS GREATER THAN OR EQUAL TO THOSE COVERED BY THE TRIAL ACCESS; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN TERMS, TESTSOOTHE WILL HAVE NO WARRANTY, INDEMNITY, SERVICE LEVEL, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL ACCESS, AND IF CUSTOMER HAS A TRIAL ACCESS, IT WAIVES ALL CLAIMS (defined above) AGAINST TESTSOOTHE ARISING OUT OF THE TRIAL ACCESS, THE USE OF THE TESTSOOTHE SERVICES, AND THE TERMS.
2.5. Trial Access
3. Customer Content & Responsibilities
3.1. Customer Content and Rights
As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) that Customer may have in and to the Customer Content as submitted to, generated by, or accessed through the TestSoothe Services. Subject to the Terms, Customer hereby grants to TestSoothe a non-exclusive, worldwide, royalty-free license to use, copy, store, transmit, modify, create derivative works of and display the Customer Content solely to the extent necessary to provide the TestSoothe Services to Customer.
Customer will ensure that use of TestSoothe Services and Customer’s collection, usage, storage, transmission, and disclosure to TestSoothe of all Customer Content are at all times in compliance with Customer’s privacy policies and all applicable Laws. Customer is solely responsible for the accuracy, content and legality of all Customer Content.
Customer acknowledges that the Services are not designed for use with (and do not require) Personal Information included in the Customer Content. Customer specifically agrees not to use the Services to collect, store, process of transmit any Personal Information other than Account-Related Information, and will not submit to the Services any Customer Content containing any Personal Information. TestSoothe will have no liability under this Agreement for Personal Information included within Customer Content, or any security incident or breach regarding such Personal Information.
Customer represents and warrants to TestSoothe that Customer has all necessary rights, consents and permissions in relation to all Customer Content as contemplated in the Terms (including granting TestSoothe the rights in Section 3.1), and that no Customer Content will violate or infringe (i) any third party Intellectual Property, publicity, privacy or other rights or (ii) any Laws. Customer will not use the TestSoothe Services with any Customer Content that (i) is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate; (ii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iii) could otherwise cause damage to TestSoothe or any third party.
3.2. Storage & Removal
TestSoothe may delete and reset the test data at any time. As a result, any Customer Content submitted for test may be deleted after each test. Customer specifically acknowledges that TestSoothe is not designed to or used for storage of Customer Content and that TestSoothe is not obliged to maintain a backup of any Customer Content except for Customer test execution data and related logs which are stored for a period of 90 days from the date of upload/creation. Customer further acknowledges and agrees that TestSoothe and its designees shall have the right to remove any Customer Content that violates these Terms or is otherwise objectionable.
3.3. Indemnification by Customer
Customer will indemnify, defend and hold harmless TestSoothe, its affiliates, its officers, directors and employees from and against any and all Claims arising out of or in connection with any claim arising from or relating to (a) any Customer Content or acts or omissions of Customer that constitute a breach or alleged breach by Customer of Section 3.1 (Customer Content and Rights) or (b) any service or product offered by Customer in connection with or related to the TestSoothe Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) at Customer’s expense, all necessary reasonable cooperation of TestSoothe to defend a Claim. Notwithstanding the foregoing sentence, TestSoothe may participate in the defense of any Claim by counsel of its own choosing, at its cost and expense and Customer will not settle any Claim without TestSoothe’s prior written consent, unless the settlement fully and unconditionally releases TestSoothe and does not require TestSoothe to pay any amount, take any action, or admit any liability.
4. Information Security And Personal Data
4.1. Information Security
TestSoothe will employ commercially reasonable technical and organizational measures that are designed to prevent unlawful or unauthorized access, use, alteration, or disclosure of Customer data, Customer Content and Personal Information.
5.1. Intellectual Property
TestSoothe Services contain materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on TestSoothe Services. You acknowledge that the TestSoothe Services contain original works that have been developed, compiled, prepared, revised, selected, and arranged by TestSoothe and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and which constitute valuable intellectual property of TestSoothe and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the TestSoothe Services, shall, as between you and TestSoothe, at all times be and remain the sole and exclusive property of TestSoothe. You acknowledge that you are obtaining only a limited right to the TestSoothe Services and that irrespective of any use of the words “purchase”, “sale” or like terms in the Terms no ownership rights are being conveyed to you. Further, you acknowledge that the TestSoothe Services are offered as an on-line, hosted solution, and that you have no right to obtain a copy of it.
You may, from time to time, submit comments, questions, suggestions or other feedback relating to TestSoothe Services to TestSoothe (“Feedback”). TestSoothe may freely use such Feedback in connection with any of its products or services without the need to pay compensation for any use of such Feedback. We treat all Feedback as non-confidential and non-proprietary.
6. Plan & Payment Terms
6.1. Subscription Plan
The prices, features, and options of the TestSoothe Services depend on the Subscription Plan selected as well as any changes instigated by Customer (“Subscription Plan”). TestSoothe does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features, usage limits and options in a particular Subscription Plan without prior notice. Customer shall not, and shall not permit others, to use the TestSoothe Services or allow access to them in a manner that circumvents contractual usage restrictions or matrices set forth in these Terms, applicable Subscription Plan.
6.2. Payment Terms
(a) When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. Customer must promptly notify TestSoothe of any change in its invoicing address and must update its account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES TESTSOOTHE OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE TESTSOOTHE SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term (as defined in Section 7.1(b), below) until Customer cancels as set forth in Section 7.2.
(b) TestSoothe will provide billing and usage information in a format we choose, which may change from time to time. TestSoothe reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.
(c) Except as expressly set forth anywhere in these Terms, all fees are non-refundable. Customer is required to pay any sales, use, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of TestSoothe. Customer hereby confirms that TestSoothe can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for Tax purposes. Customer must make all payments without any setoffs, withholdings, or deduction of any kind. Any late payments may be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by TestSoothe to collect any amount that is not paid when due. Amounts due to TestSoothe may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from TestSoothe.
7. Term And Termination
(a) With reference to TestSoothe Services, these Term shall begin on the date the Customer accepts it and continues until the Customer’s Subscription Plan expires or its use of the TestSoothe Services ceases (including as a result of termination in accordance with the Terms), whichever is later.
(b) Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to TestSoothe Services or by contacting us at firstname.lastname@example.org; (c) TestSoothe declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending upon the Subscription Term (“Renewal Term”).
7.2. Termination by Customer
You may terminate your Account at any time upon thirty (30) days’ advance written notice to TestSoothe. If you wish to terminate, you must provide notice by writing to us at email@example.com. In case of such termination, TestSoothe is under no obligation to refund any fees paid in advance for the unexpired period of the Term.
7.3. Termination by TestSoothe
TestSoothe can terminate Customer Account in case Customer is considered to be in default. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us; (b) it or a Permitted User breaches any provision of these Terms or violates any published policy applicable to the TestSoothe Services; (c) if, in our sole discretion, we believe that continued use of the TestSoothe Services by the Customer (or its Permitted Users) creates legal risk for TestSoothe or presents a threat to the security of the TestSoothe Services or TestSoothe’s customers. If a Customer is in default, we may, without notice: (i) suspend its use of the TestSoothe Services; (ii) terminate its account; and (iv) pursue any other remedy available to us.
7.4. Termination for Cause
Either party may terminate these Terms if the other party (a) fails to cure any material breach of the Terms (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days).
7.5. Effect of Termination
Upon any expiration or termination, Customer will immediately cease any and all use of and access to all TestSoothe Services and delete (or, at TestSoothe’s request, return) any and all copies of the Documentation, any TestSoothe passwords or access codes and any other TestSoothe CI in its possession. Any Fees accrued but not paid shall become immediately due and payable upon termination.
The following Sections will survive any expiration or termination of these Terms : 2.1 (Access), 2.5 (Trial Access), 3 (Customer Content & Responsibilities), 5 (Ownership), 6.2 (Payment Terms), 7 (Term and Termination), 8 (Warranties and Disclaimers), 9 (Limitation of Remedies & Damages), 10 (Confidential Information) and 11 (General Terms).
8. Warranties And Disclaimers
TESTSOOTHE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND ‘AS AVAILABLE”. YOUR USE OF THE SAME SHALL BE AT YOUR SOLE RISK. NEITHER TESTSOOTHE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND LICENSORS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TESTSOOTHE DOES NOT WARRANT THAT CUSTOMER’S USE OF TESTSOOTHE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES TESTSOOTHE WARRANT THAT IT WILL REVIEW THE CUSTOMER CONTENT FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT OR CUSTOMER END USER DATA WITHOUT LOSS. TESTSOOTHE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TESTSOOTHE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. TO THE EXTENT PERMITTED BY LAW, TESTSOOTHE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET; (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF TESTSOOTHE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (III) ANY LOSS OF YOUR DATA OR CONTENT FROM THE TESTSOOTHE SERVICES; OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY TESTSOOTHE, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT TESTSOOTHE CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, TESTSOOTHE SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER CONTENT ARISING FROM SUCH RISKS. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF TESTSOOTHE TO ANY THIRD PARTY. TESTSOOTHE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH WEBSITE OR TESTSOOTHE SERVICES, AND TESTSOOTHE SHALL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCT OR SERVICES.
9. Limitations Of Remedies And Damages
9.1. Consequential Damages Waiver
EXCEPT FOR THE EXCLUDED CLAIMS DEFINED BELOW, NEITHER PARTY SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, TESTSOOTHE SERVICES, OR THE DOCUMENTATION FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.1 (Access); (b) under Section 3 (Customer Content & Responsibilities); or (c) from a party’s breach of its obligations in Section 10 (Confidential Information). The parties agree that the waivers and limitations specified in this Section 9.1 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
9.2. Liability Cap
TESTSOOTHE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THESE TERMS, THE TESTSOOTHE SERVICES OR THE DOCUMENTATION AT ANY TIME WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TESTSOOTHE FOR THE TESTSOOTHE SERVICES GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY OR $100, WHICHEVER IS LOWER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF LIABILITY IN CERTAIN INSTANCES, PORTIONS OF THE ABOVE LIMITATION, IN SUCH CASES, MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Confidential Information
(a) “Confidential Information” or “CI” shall mean non-public confidential or other proprietary information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) under these Terms or is obtained by the Receiving Party in connection with its dealings with the Disclosing Party.
(b) CI includes, without limitation, hardware and software designs and code; research; inventions; processes; schematics; drawings; product or service specifications and documentation; technical data; business, service, and product plans; marketing plans; forecasts; information about potential customers or vendors; customer or vendor lists; pricing information; other financial and sales information; and other confidential business information. CI also includes any information disclosed by a Disclosing Party to a Receiving Party that is considered to be confidential information in a nondisclosure agreement with a third party after the Receiving Party is notified of such non-disclosure agreement.
(d) The Receiving Party shall (i) not disclose to any third party any portion of the CI it receives from the Disclosing Party without the prior written consent of the Disclosing Party; (ii) not use or exploit the CI in any way except for the purpose of internal review of the CI to evaluate the Transaction, to perform the agreement embodying the Transaction, or as otherwise specifically licensed by the Disclosing Party; (iii) promptly return or destroy, at the Disclosing Party’s option, all materials and documentation comprising or containing the CI received from the Disclosing Party upon completion of the review or use, or upon request of the Disclosing Party; (iv) take all reasonably necessary precautions to protect the confidentiality of the CI received hereunder and exercise at least the same degree of care in safeguarding the CI as the Receiving Party would with its own confidential information, but in no event less than a reasonable degree of care; (v) disclose CI to employees or Representatives only if they have a need to know the CI; (vi) cause its employees or Representatives who receive access to CI to abide by the restrictions and terms of these Terms; and (vii) promptly advise the Disclosing Party in writing upon learning of any unauthorized use or disclosure of the CI. “Representative” means an agent, attorney, accountant, financial advisor, contractor, or other representative of the Receiving Party outside the Receiving Party’s organization. The Receiving Party shall not disclose any CI of the Disclosing Party to a Representative of the Receiving Party unless the Representative is either (i) subject to a written confidentiality agreement between the Receiving Party and the Representative obligating the Representative to maintain such CI in confidence, or (ii) otherwise subject to fiduciary obligations of confidentiality under applicable law that would require the confidential treatment of the CI.
(f) If the Receiving Party is required by a government body, court of competent jurisdiction, or judicial or administrative process to disclose any of the Disclosing Party’s CI, the Receiving Party shall give the Disclosing Party reasonable advance notice so that the Disclosing Party may contest the disclosure or seek a protective order. Provided such notice is given, no such disclosure shall constitute a breach of these Terms.
(g) The Receiving Party acknowledges that breach of this Section 10 will cause irreparable harm to the Disclosing Party that is inadequately compensable in damages. Accordingly, the Receiving Party hereby acknowledges that the Disclosing Party is entitled to seek the issuance of any injunctive relief or the enforcement of other equitable remedies against it in any suit by the Disclosing Party to compel performance of any of the terms of this Section 10.
11. General Terms
11.1. Third Party Content
We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. TESTSOOTHE IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE TESTSOOTHE SERVICES OR POSTS OF USER CONTENT.
These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign these Terms without the advance written consent of the other party, except that either party may assign these Terms in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign these Terms except as expressly authorized will be null and void.
The unenforceability of any provision or provisions of these Terms shall not render unenforceable or impair its remainder. If any provision of these Terms is deemed invalid or unenforceable in whole or in part, these Terms shall be deemed amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.
11.4. Governing Law; Jurisdiction and Venue
These Terms will be governed by the laws of Lagos State and Nigeria without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising out of these Terms shall be resolved in a state or federal court located in Lagos, Nigeria and the parties hereby consent to the jurisdiction of such courts.
11.5. Attorneys’ Fees and Costs
The prevailing party in any action to enforce these Terms will be entitled to recover its attorneys’ fees and costs incurred in connection with such action.
While the parties may communicate by any means in the performance of these Terms, any notice of termination or other legal notice to a party shall be effective only if it is in writing and sent using (a) TestSoothe Services; (b) nationally-known courier service that confirms delivery in writing or email, in which case notice will be deemed given upon receipt or (c) registered or certified mail, postage prepaid and return receipt requested, in which case notice is deemed given the third business day after such notice is deposited in the mail. Such notices can be sent at the address set forth in Customer’s Account or on in case of TestSoothe, to firstname.lastname@example.org. Email notices are effective only if the sender receives confirmation of receipt from the recipient.
11.7. Amendments; Waivers
No supplement, modification, or amendment of these Terms will be binding, unless executed in writing by a duly authorized representative of each party to these Terms. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of these Terms.
11.8. Entire Agreement
These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these Terms.
11.9. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay money) if the delay or failure is directly attributable to unforeseen events that occur after these Terms becoming effective and that are beyond the reasonable control of such party (each, a “Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, pandemic, natural disaster, failure or diminishment of power or data or telecommunications networks or services.
11.10. Independent Contractors
The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf.
11.11. Export Control
In its use of the TestSoothe Services, Customer agrees to comply with all export and import laws and regulations of the and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any NIGERIA government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a NIGERIA government embargo or that has been designated by the NIGERIA government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use TestSoothe Services in violation of any NIGERIAN export embargo, prohibition or restriction, and (iii) Customer will not submit to the TestSoothe Services any information that is controlled under the NIGERIA International Traffic in Arms Regulations.
11.12. Government End-Users
Elements of the TestSoothe Services are commercial computer software. If the Permitted User or Customer of the TestSoothe Services is an agency, department, or other entity of the Nigeria Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the TestSoothe Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of these Terms. TestSoothe Services are developed fully at private expense.
TestSoothe may use Customer’s name and logo on TestSoothe’s website and other marketing materials solely to identify Customer as a Customer of TestSoothe (without revealing any CI).