THESE TERMS AND THE RULES CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU, OR THE COMPANY ON WHOSE BEHALF YOU ARE USING THE SERVICE (“YOU”) AND H.S. PRACTITEST LTD. (“PRACTITEST”), AND SUPERSEDE ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER OF THESE TERMS AND THE RULES. In the event of any conflicts between the provisions of these Terms and the provisions of the Rules, the provisions of these Terms shall prevail.
1. RIGHT TO USE AND RESTRICTIONS
1.1 Right to Use. Subject to these Terms, PractiTest hereby grants to You a personal, revocable, non-exclusive, non-sublicensable, non-transferable, right to use the Service, solely for the limited period and by each named user as stated in Your registration to the Service, as may be amended for time to time by You or by your authorized representatives, solely for Your internal business purposes.
1.2 General Restrictions. The Service and the underlying inventions, ideas and concepts, are the valuable intellectual property of PractiTest and You agree not to, directly or indirectly, (a) access the Service if You are a direct competitor of PractiTest, as determined by PractiTest, (b) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, (c) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make the Service available in any manner to any third party, or for the benefit of any third party, or otherwise use or allow others to use the Service; notwithstanding the foregoing, You may allow your subcontractors to use the Service, provided that all obligations and undertaking hereunder shall remain with you for any act or omission made by your contractors and will remain liable to PractiTest, (d) modify or make derivative works based upon the Service, (e) copy, reverse translate, decompile, disassemble or otherwise reverse engineer the Service by any means whatsoever, (f) develop methods to enable unauthorized parties to use the Service, or to develop any other product containing any of the concepts and ideas contained in the Service, (g) remove, deface, obscure or otherwise modify any copyright or other proprietary notices included on or in the Service, (h) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (j) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (k) work around any technical limitations in the Service, or use any tool to enable features or functionalities that are otherwise disabled in the Service, (l) enter a project that you are not listed as one of its registered users, or (m) create, read, update or delete any data which is not related to your project. You shall promptly notify PractiTest of any actual or suspected violation of the terms of this Section, and of any actual or suspected infringement or unauthorized use of the Service, that You become aware of, and shall assist PractiTest in its efforts to remedy, prevent or prosecute such infringement or unauthorized use.
1.3 Third Party Software. The Service includes third party software which is subject to certain licenses available at the websites listed at the attached Schedule A (“Third Party Licenses”). By executing these Terms, You undertake to comply with the terms of the Third Party Licenses. We provide no express or implied warranty, indemnity or support for, and have no liability in connection with, the Third Party Licenses.
1.4 Privacy; Security; Back up. PractiTest privacy and security policies may be viewed at the Site, as may be updated by PractiTest from time to time. PractiTest uses commercially reasonable efforts to back up the Service and your data. However, PractiTest does not warrant that the Service or your data shall be secure or available, subject to the Limited Warranty set forth below.
2. CUSTOMER DATA
PractiTest does not own any data, information or material that You submit to the Service in the course of using the Service (“Customer Data”), and shall not use Customer Data except as required to provide the Services and as otherwise stated in the Rules. You hereby grant PractiTest the right to share any of your Customer Data with: (i) the account owner or its authorized representative, and (ii) such other users that have registered for the same project or the same account. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and PractiTest shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. However, PractiTest shall have no obligation to make available or maintain any Customer Data for any material breach by You of these Terms or the Rules, including without limitation Your failure to pay applicable payments.
For use of demos: no Customer Data may be stored on the Service, unless determined otherwise by PractiTest. If any customer Data is stored at the Services, PractiTest may delete the Customer Data after 14 days of storage or such longer period as may be determined by PractiTest.
3. FEES; PAYMENT; NON-PAYMENT
PractiTest charges and collects, directly or through a third party provider, in advance for use of the Service or post use based on usage, which shall be calculated based on the number of named users that are included in Your registration to the Service, which may be amended by You or by your authorized representatives, from time to time, by adding or removing named users. You shall pay to PractiTest a non-refundable non-cancelable payment in accordance with the fees, charges, and billing terms stated in the Site as in effect at the time a fee or charge is due and payable. PractiTest reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice posted on the Site. Unless otherwise stated, all fees are quoted in U.S. Dollars. All fees payable by You are exclusive of all taxes, including value added taxes and withholding taxes, where applicable. You shall pay all taxes and duties (including applicable value added and/or withholding taxes at the prevailing rate on the date of invoice) associated with these Terms, excluding taxes on PractiTest’s net income.
PractiTest reserves the right to seek reimbursement from You, if it receives a charge-back from any credit card issuer or with respect to any other payment method, for any reason, by any lawful means.
You agree to provide PractiTest with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and credit card information. You agree to update it in writing promptly upon any change to this information. If the contact information you have provided is false or fraudulent, or if your account becomes delinquent, PractiTest reserves the right to terminate your access to the Service in addition to any other legal remedies.
If You believe your bill is incorrect, You must contact us in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Late payments are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all reasonable expenses of collection. You will continue to be charged for User Licenses during any period of suspension. If You or PractiTest initiates termination of these Terms, You will be obligated to pay the balance due on your account computed in accordance with this Section. You agree that PractiTest may charge such unpaid fees to your credit card or otherwise bill You for such unpaid fees. PractiTest reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service.
4. TITLE AND INTELLECTUAL PROPERTY
Except for the right to use expressly granted herein, all right, title, and interest in and to the Service or any copyrights, patents, trademarks, trade secrets and other intellectual property rights embodied therein or used in connection therewith shall remain with PractiTest and its licensors. PractiTest reserves all rights in the Service not expressly granted to You in these Terms. PractiTest shall own all modifications and derivative works of the Service, whether made by PractiTest, You or any third party, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. You shall not take (and shall not allow any third party to take) any action inconsistent with PractiTest’s ownership and interests as set forth above, or assist any third party in doing the same, and You will report to PractiTest promptly in writing any instance of suspected infringement of any intellectual property related to the Service and give PractiTest reasonable assistance in investigating and prosecuting the infringing acts.
5. LIMITED WARRANTY AND DISCLAIMER OF ALL OTHER WARRANTIES
THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, except that PractiTest warrants that the Service will perform substantially in accordance with the online PractiTest documentation under normal use and circumstances.
ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PRACTITEST AND ITS LICENSORS.
PRACTITEST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR WITH RESPECT TO ANY USE THAT IS NOT IN STRICT COMPLIANCE WITH THESE TERMS, THIRD PARTY LICENSES, THE RULES OR ANY DOCUMENTATION WE MAKE AVAILABLE TO YOU VIA THE SITE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, PRACTITEST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE ACCESS TO OR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICEWILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, ORWILL NOT BE LOST, DAMAGE OR CORRUPTED, (D) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR PRACTITEST WILL DETECT EVERY BUG IN THE SERVICE, (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (F) THIRD PARTY DISRUPTIONS AND SECURITY BREACHES OF THE SERVICE WILL BE PREVENTED.
6. LIMITATION OF LIABILITY
PractiTest’s aggregate liability arising out of or related to these Terms, the use of or inability to access or use the Service will be limited, to the fullest extent possible under applicable law, to an amount equal to the amount paid by You for the Service during the three (3) month period immediately preceding the event giving rise to such claim. In no event will PractiTest, its affiliates, subsidiaries, or licensors be liable, except insofar as it is not possible to exclude liability under applicable law, (a) the use of, or inability to use the Service, (b) your inability to access the Service or its proper operation due to any malfunctioning network, (c) your hardware or software failure, (d) inadequate security on your part, specifically in protecting your any usernames, passwords, registration data and physical access to your hardware, networks and systems, (e) a failure on your part to comply with applicable legal and regulatory obligations including the payment of any tax in respect of your use of the Services, (f) any third party act, in particular remote intrusion or viruses, (g) your breach of these Terms, (h) for costs of procurement of substitute services, (i) for any special, consequential, incidental, indirect, punitive or exemplary damages (including without limitation for loss of profit), or (j) for interruption of use or loss or corruption of data; in each case whether or not PractiTest has been advised of the possibility of such damage or loss, however caused and on any theory of liability, arising out of or related to these Terms, the use of or inability to use the Service.
7. CONFIDENTIAL INFORMATION
7.1 The Service constitutes valuable proprietary information of PractiTest and its licensors and that unauthorized dissemination or disclosure of the Service or any part thereof could cause PractiTest irreparable harm. “Confidential Information” means any proprietary information, including trade secrets and other information, which is disclosed by PractiTest or its affiliates (including without limitation information of affiliates and third parties), whether tangible or intangible, including but not limited to the terms and conditions of these Terms and any information relating to the Service and included in the Service, except any portion thereof which is now available or later becomes available to the public without breach of these Terms, is lawfully obtained from a third party or parties who are under no obligation of confidentiality to PractiTest, or is known to You prior to such disclosure as evidenced by your written records.
7.2 During and after the term of these Terms You shall hold in strict confidence any and all Confidential Information, shall limit access to the Confidential Information to those of your employees and consultants who need to have access to such information or material for purpose of your use of the Service under these Terms and who are obligated to maintain confidentiality sufficient to protect PractiTest’s rights in the Confidential Information, shall protect the confidentiality of the Confidential Information with the same degree of care as for its own information of like importance, but at least use reasonable care and shall not use the Confidential Information except for exercising its rights hereunder.
7.3 During and after the term of these Terms PractiTest shall hold in strict confidence any and all Customer Data, and shall use Customer Data only for purpose of providing the Service, and shall protect the confidentiality of the Customer Data with the same degree of care as for PractiTest’s own information of like importance, but at least use reasonable care. PractiTest may delete the Customer Data after 14 days of termination of the right to use granted by PractiTest pursuant to these Terms or such longer period as may be determined by PractiTest.
You shall at your expense, indemnify and hold PractiTest, its officers, directors, agents and employees harmless from and against any action, claim, suit or proceeding and shall pay all costs, liabilities, damages and reasonable attorney fees to the extent arise from or in connection with (i) your use of the Service, or any other use, misuse, or unauthorized use of the Service through your username and password; or (ii) the Customer Data provided by or on Your behalf. PractiTest shall provide You with written notice of the claim, permit You to control the defense, settlement, adjustment or compromise of any such claim, and reasonably cooperate with You in the defense and any related settlement action. PractiTest reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. TERM AND TERMINATION
The term of these Terms shall be for the period for which we have accepted payment from You for the Service pursuant to the Rules, unless earlier terminated by us (i) upon written notice to You due to a breach of these Terms by You; or (ii) upon seven (7) days written notice to You, for any or no reason, in which case we shall refund a proportion of the amount paid by you for the Service which relates to the remaining term of these Terms.
Upon expiration or termination of these Terms: (i) the right to use granted under these Terms shall terminate, (ii) You shall cease all use of the Service, and (iii) all amounts owed to PractiTest by You shall become immediately due and payable by You.
Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 shall survive expiration or termination of these Terms.
10. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You understand and agree that PractiTest may display your name, or the Company’s name on whose behalf you are using the Service, at the Site, as part of PractiTest customers’ list.
PractiTest will be entitled, at any time during, and for four years after, the term of these Terms to inspect your facilities and systems during normal business hours for purposes of determining compliance with these Terms. The remedies under these Terms shall be cumulative and not alternative and the election of one remedy shall not preclude pursuit of other remedies unless expressly provided in these Terms. You may not assign your rights or obligations under these Terms without the prior written consent of PractiTest. PractiTest may assign any of its rights and obligations hereunder. PractiTest reserves the right to modify the terms of these Terms from time to time, effective upon posting of an updated version of these Terms on the Service. You are responsible for regularly reviewing these Terms. Continued use of the Service after any such changes shall constitute your consent to such changes. If any provision set forth in these Terms is determined by any court of competent jurisdiction to be unenforceable, invalid or illegal, such provision shall be interpreted to have the broadest application as shall be enforceable, valid and legal, provided, however that if such provision cannot be interpreted to be enforceable, valid or legal to any extent, such provision shall be severed. The invalidity, illegality or unenforceability of any particular provision of these Terms shall not affect the other provisions hereof, which shall continue in full force and effect. No failure or delay in exercising any right hereunder by PractiTest shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise. These Terms will be governed by and interpreted under the laws of the State of Israel, without regard to its choice of law provisions. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the applicable courts located in Tel-Aviv-Jaffa, Israel. Notwithstanding the foregoing, PractiTest shall be entitled to seek injunctive or declaratory relief in any court of competent jurisdiction. The section titles in this Agreement are solely used for the convenience and have no legal or contractual significance.
IF YOU HAVE QUESTIONS REGARDING THESE TERMS OR WISH TO OBTAIN ADDITIONAL INFORMATION, PLEASE SEND AN E-MAIL TO LEGAL@PRACTITEST.COM.
Third Party Software:
– MIT license (Rails and other components and gems)
– GNU General Public License + GPLv2 (Phusion), LGPLv3 (Sidekiq)
– BSD license (Memcached – BSD3, Redis)
– Apache (Apache, Twitter bootstrap, more)