The following Terms and Conditions (“Terms”) govern Company’s use of the Platform and any Services provided by Test IO, Inc. The Test IO Platform and any other software is licensed and not sold.
1. Definitions
Capitalized terms in this Agreement have the following meanings when used in this Agreement or any exhibit or attachment hereto:
“Content” means Company data or any other data, information, text or graphics, or software provided to Test IO by Company and/or its Users.
“Intellectual Property Right” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial Platform, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.
“Platform” means Test IO cloud based services including any related mobile applications, and all upgrades and enhancements to the Platform that may be provided by Test IO under this Agreement.
“User” means a single person with a unique ID and password provided by Company enabling access to a Site. A User may be (i) a Company employee; or (ii) any contractors or other staff who are working for Company; and (iii) any other person working with, or on behalf, of Company; provided that: (a) such User is accessing and using the Services exclusively on Company’s behalf; and (b) Company will at all times be responsible for the actions and omissions of each User as if such actions and omissions were that of Company.
“Production” means a live environment that is in commercial or production use or any environment that is connected to an ordering or e-commerce system capable of processing transactions.
“Services” means any services provided by Test IO through the Platform, but excludes software testing services provided by third parties through the Platform.
“Site” means a section of the Platform configured for use by Company intended to enable Users to create and implement tests specific to Company. The Site may contain information on multiple tests designated by Company.
2. Licenses and Restrictions
2.1. Platform License. Subject to the terms and conditions of this Agreement, Test IO grants to Company during the subscription term, a limited, worldwide, non-exclusive, non-transferable, royalty bearing license, without right of sublicense, to access and use the Platform solely for Company’s internal business purposes of software testing. Any mobile applications used by Company for access to the Platform are subject to the terms of the End User License Agreement accompanying the mobile application. Company acknowledges that the Platform aggregates third party testing services for resale to Company, that testers are third party contractors, and that no testing services are being provided to Company directly by Test IO. Third party contractors providing testing services may be located anywhere in the world.
2.2. Data License. Company grants Test IO a world-wide, perpetual, irrevocable, royalty-free, license to use, display, reproduce and distribute the Content on the Site solely: (i) for archival purposes and to carry out Test IO’s obligations under this Agreement; and (ii) for Test IO’s internal use in improving the Site and Services so long as Test IO does not disclose the identity of the Company.
2.3. Restrictions and Company Obligations. Company may not use the Platform in any manner that could damage, disable, overburden, or impair servers, networks or other devices running, or connected to, the Platform. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Company will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Platform; (b) rent, lease, or sublicense the Platform; (c) use the Platform on a service bureau or Platform service provider basis; (d) provide, divulge, disclose, or make available to, or permit the use of the Platform by any third party; nor (e) circumvent or disable any technological features or measures in the Platform. Company may not publish any benchmark or comparison information regarding the Platform or Services without the prior written consent of Test IO. Company will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Platform. Company will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Platform.
3. Reservation of Rights
Access and use of the Platform is licensed by Test IO to Company, not sold, and nothing in this Agreement will be interpreted or construed as a sale of the Platform. Company will not have any rights in or to the Platform, except as expressly granted in this Agreement, and Test IO retains all Intellectual Property Rights in and to the Platform and Services. The Platform, all copies thereof, any derivative works, compilations, and collective works of the Platform, and any know-how and trade secrets related thereto are the sole and exclusive property of Test IO and contain Test IO’s confidential and proprietary materials. Company will take appropriate steps and precautions for the protection of the Platform. Without limiting the generality of the foregoing, Company will use its best efforts to prevent any use, possession, knowledge, examination, copying, disclosure, or other activity involving any part of the Platform that is not expressly authorized by this Agreement (“Unauthorized Use”) and immediately notify Test IO in writing of any Unauthorized Use that comes to Company’s attention and will take all steps reasonably necessary to terminate such Unauthorized Use.
4. Company Obligations
Company acknowledges that certain services provided by Test IO are dependent on Company providing Test IO certain data, information or assistance. Company agrees that prior to any testing services requested by Company, Company will provide to Test IO: (i) the application or website to be tested including any device, operating system or browser as appropriate; (ii) a description of the purpose of the test run and specific test requirements; (iii) a list of known software bugs, errors or deficiencies; (iv) any interface or bug tracker to be used; (v) any other information reasonably requested by Test IO as necessary to perform the Services. If a customer does not reject or otherwise dispute a software bug, error or deficiency identified within ten (10) days of its being reported, the software bug, error or deficiency will be deemed accepted.
5. Production Testing
Company acknowledges that testing in a Production environment or in a manner that touches its Production services can damage, impair or interfere with Company’s normal business operations. Test IO will have no liability to Company for any damages, costs, expenses or charges of any kind resulting from any test on a Production environment or on a system that interoperates with Company’s Production environment or systems, and Company acknowledges and agrees that it alone will have sole and exclusive liability for any damages, costs, expenses or claims arising from any direct or indirect testing of its Production environment. Test IO may impose additional or different terms for such testing.
6. Services and Technical Support
As of the Effective Date, Test IO will make available to Company the Platform and any Services specified in the Order that have been purchased by Company. Unless expressly purchased as managed services work, Services will not include the setting up and/ or configuration of the Site or the configuration of any tests and such activity will be the responsibility of Company. Additional Services may be purchased by Company upon written agreement of the parties at the Test IO pricing current at the effective date of the Order.
7. Feedback
Company may, during the term, provide Test IO with verbal feedback and/or written feedback related to Company’s use of the Test IO Platform or Services, including, but not limited to, a report of any errors which Company may discover. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by Company to Test IO concerning the Platform, Services or any other Test IO products or services, and any information reported automatically through the Platform or Services to Test IO (“Feedback”) will be the property of Test IO. Company agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Test IO and agrees to assist Test IO, at Test IO’ expense, in perfecting and enforcing such rights.
8. Payments
8.1. Fees. The Company agrees to pay the fees set forth in any Order. Unless otherwise stated in the Order, all undisputed fees are due within fourteen (14) days of the date of invoice. All Orders are non-cancelable and non-refundable unless otherwise expressly stated in this Agreement. Agreed temporal (e.g. monthly) quotas of services can only be claimed in the respective period. Unused quotas expire and cannot be transferred to the following period (month). Invoices for periods less than the subscription term may occasionally be issued as a convenience, but an invoice does not shorten a subscription term or give any early termination right to Company. All payments will be made in United States dollars in immediately available funds. Any amounts not paid when due will bear interest at a rate of 18% per annum, compounded monthly, or the maximum rate permitted by law, whichever is lower. Test IO reserves the right to suspend any Services or Company access to Platform if any undisputed fees are more than ten (10) days past due.
8.2. Disputed Invoices. In the event Company reasonably and in good faith disputes any fee(s) set forth on any invoice or record of payment issued by Test IO, Company must notify Test IO in writing, setting forth the reasons for non-payment and the amount of such dispute (a “Dispute Notice”), no later than thirty (30) days following the receipt of the invoice or record of payment. Upon receipt of a Dispute Notice, both parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within fifteen (15) days. Upon resolution of the dispute by the parties, additional agreed amounts due from Company, if any, in relation to the applicable invoice must be remitted to Test IO within ten (10) days following such resolution. If the dispute remains unresolved sixty (60) days after the date of the invoice at issue, either party may declare the other party in breach of this Agreement and pursue any or all legal remedies available to it.