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Terms of Service

Last Updated: April 1, 2019

These Terms of Service, together with Testim’s Privacy Policy which can be found at https://www.testim.io/privacy (collectively, “TOS”), govern Customer’s (defined below) access to and use of Testim’s website (“Website”) and Services (defined below).

“Testim” means Testim Inc. and/or any of Testim Inc.’s affiliates, including without limitation Testim Computerized Verifications Ltd.

“Customer” means you, or the entity on whose behalf you are agreeing to the TOS. You represent and warrant that you have full legal authority to bind Customer to the TOS.

2.BY ACCESSING AND USING THE WEBSITE AND/OR ANY SERVICES AND/OR BY ENTERING INTO AN ORDER, CUSTOMER EXPRESSLY AGREES TO BE LEGALLY BOUND BY THE TOS. IF CUSTOMER DOES NOT AGREE TO THE TOS, CUSTOMER SHALL NOT VISIT THE WEBSITE, SHALL NOT ENTER INTO AN ORDER, AND SHALL NOT USE ANY SERVICES.

TESTIM MAY UPDATE THE TOS FROM TIME TO TIME. TESTIM WILL NOTIFY CUSTOMER OF UPDATES BY EMAIL, BY POSTING NOTICE OF THE UPDATE ON THE WEBSITE, OR BY ANY OTHER REASONABLE MEANS. CUSTOMER’S CONTINUED USE OF THE WEBSITE AND/OR THE SERVICES AFTER TESTIM’S NOTICE OF AN UPDATE SHALL CONSTITUTE CUSTOMER’S CONSENT TO SUCH UPDATE.

3.The TOS take effect on the earlier of: (i) Customer visits the Website, and (ii) Testim executes a written order or quote for the Services (“Order”). All Orders form part of the 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 Terms of Service. For the avoidance of doubt, any terms added by Customer to an order form or quote do not constitute part of an Order.

Customer Access to and Use of the Services and the Website. Customer may access and use the Services and the Website solely subject to and in accordance with the TOS. 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, Testim 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.

Customer’s License. In consideration for Customer’s ongoing compliance with the TOS and full and punctual payment of the Fees (to the extent applicable) , Testim hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the Services, solely for Customer’s internal business purposes (“License”).

The Services. The “Services” include Testim’s automated QA tests authoring software, tests execution service and the Testim Capture tool for bug reporting, and any other products or services provided by Testim from time to time through the Website or otherwise, and all updates, upgrades and enhancements thereto. 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 or acquire a third-party license in order to use the Services. Use of the Services is restricted to such specific user(s) (each, a “Permitted User”) and number of Executions per month (“Execution Limitation”) as set forth in the applicable Order (or Execution Limitation of 100 and 1 Permitted User if using the Basic plan). “Execution” means a single test execution using Testim’s editor 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.

Customer Responsibility. To access and use the Services, Customer and Permitted Users must access Customer’s account (“Account”), for which User Data (defined below) is required. 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 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 Testim in the event that Customer becomes aware of any unauthorized access to the Account or any violation of the TOS. Customer hereby releases Testim from any and all liability, losses and damages in connection with any unauthorized access or use of Customer’s Account and/or Customer Content.

“User Data” means identifying information relating to Customer and Permitted Users such as name and email address, furnished to Testim 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 of the Services.

Customer Content. As between the parties, Customer or its licensors owns all right, title and interest in and to the Customer Content. Customer consents to the access and use of Customer Content by Testim and its third-party service providers to provide the Services and the Website and in accordance with the TOS. In addition, Customer grants Testim the right to use Customer’s name, mark and logo on the Website, in sales presentations, at trade shows, and in other marketing materials. Testim may ask Customer to participate in marketing activities such as testimonials and webinars.

Testim’s Ownership. Testim and its licensors own and reserve all rights, title and interest in and to the Services and the Website, including without limitation to all of Testim’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. Nothing in the TOS grants Customer any right to use any of Testim’s intellectual property, including without limitation any of its copyrights, trademarks, service marks, or logos.

Responsibility for Customer Content. 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. Testim 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.

No Sensitive Data. Customer acknowledges and agrees that except for User Data furnished by Customer or Permitted Users solely to access and use the Services and/or the Website, no information relating to an identified or identifiable natural person shall be provided to Testim directly or through the Services or Website, and Customer understands that the Website and the Services are not intended for use to transfer, process, use or store information relating to an identified or identifiable natural person, and Customer agrees not to use the Website or the Services for such purpose. Customer represents and warrants to Testim that Customer shall not upload or otherwise provide, in connection with the Services and/or the Website, any Customer Content that may constitute a special category of data pursuant to any applicable information security, data protection, privacy and/or other statute, act, law, regulation or directive, such as sensitive personal data (including without limitation personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, criminal convictions, health, or sex life).

Fees and Interest. Customer shall pay Testim 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 (defined in Section ‎16) (“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. 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, Testim 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 when invoiced by Testim or will supply appropriate tax exemption certificates to Testim in a form satisfactory to Testim.

Third Party Services. Certain parts of the Services may be provided by third party service providers (“Third Party Services”). Subject to applicable law, Testim may, in Testim’s sole discretion, retain and replace Third Party Services and third-party service providers from time to time.

Right to Terminate or Suspend Services. If Testim believes in its sole discretion that there may have been or may be a violation of Customer’s warranties and/or obligations under the TOS, Testim may, in its sole discretion and without any requirement to monitor Customer’s compliance, to immediately: (i) reduce certain functionalities or performance of the Services, (ii) suspend or terminate the provision of Services to Customer, and/or (iii) block the transmission of Customer Content which in Testim’s reasonable opinion might violate applicable law or the rights of others and/or might subject Testim to liability. Testim may also take the foregoing measures if Testim reasonably believes that any Customer Content may have been or is at risk of being accessed by a third party without authorization, until the suspected intrusion is resolved.

Term. The License for the Services shall commence as of the starting date detailed in the applicable Order or when Customer first accesses the non-payment services, as applicable, and will be in effect for the term specified therein (“Term”). The Term can be extended by the parties by executing an additional Order or amendment. The Term for non-payment Services signed up for on the Website and not through an Order shall continue until terminated by either party.

Termination of the Services. Customer may terminate the Services by providing written notice to Testim at info@testim.io. 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, Testim may terminate non-payment Services at any time and for any reason. In addition, Testim may terminate provision of the Services immediately and without liability upon providing notice to Customer: (i) if Testim believes that Customer has violated any provision of the TOS or applicable law, (ii) if Testim is threatened with a legal claim related to the provision of the Services, (iii) if Testim’s relationship with a third party service provider terminates or requires Testim to modify, suspend or terminate the Services, (iv) if Testim believes providing the 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 Testim determines that the use of the Services by Customer or Testim’s provision of any of the Services has become impractical or unfeasible. Testim 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 Testim in its discretion chooses to cease providing the current version of the Services or any of its features and/or specific functions, whether through discontinuation of the Services or by upgrading or downgrading the Services to a newer version, Customer may not be able to continue using the previous version of the Services. Customer understands and agrees that features and/or functions of previous Services versions might be removed in future versions thereof, and that Testim shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Services.

Effect of Termination. Upon termination of the provision of the Services, Customer’s license will end, all of Customer’s rights to use the Services shall terminate, and Customer will no longer have access to any evaluations, tests, test results, electronic communications and/or data that was posted, uploaded or otherwise transmitted to the Services. Thirty days following termination of the provision of the Services, Testim will delete Customer Content. The provisions of Sections 1, 2, 3, 7 (Customer Responsibility), 8 (Customer Content), 9 (Testim’s Ownership), 10 (Responsibility for Customer Content), 11 (No Sensitive Data), 12 (Fees and Interest), 13 (Taxes), 17 (Termination of the Services), 18 (Effect of Termination), 19 (Customer Representations and Warranties), 20 (Testim Representations and Warranties), 21 (Open Source Software), 22 (Restrictions), 23 (Suggestions), 24 (Third Party Links), 25 (Confidentiality), 28 (Disclaimer of Warranties), 29 (Limitation of Liability), 30 (Indemnification), 31 (Privacy), 33 (No Third-Party Beneficiary), 34 (Miscellaneous) shall survive termination of the provision of the Services for any reason.

Customer Representations and Warranties. Customer represents and warrants to Testim 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 Testim 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 Testim, 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, and (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.

Testim Representations and Warranties. Testim represents and warrants to Customer that Testim has the requisite power and authority to enter into the TOS and to perform all of its obligations under the TOS.

Restrictions. Customer may use the 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 Services, (ii) reverse engineer, disassemble, decompile, or translate the 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 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 Services, or use the 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 Services for any purpose, including without limitation its availability, performance or functionality, (viii) gain or attempt to gain unauthorized access to Testim’s systems or network, (ix) publish, post, upload or otherwise transmit to the 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 Representatives’ 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 Testim or its licensors, affiliates or users, any infringement or other claim in connection with the Services. Except for the express rights granted herein, Testim does not grant, and Customer does not receive, any other rights, express or implied.

Suggestions. Should Customer provide Testim with any ideas, feedback or suggestions regarding the Services and/or the Website (“Suggestions”), including without limitation in connection with bug fixes or improvements, Testim 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 Testim all right, title and interest in and to all Suggestions and agrees to provide Testim with such reasonable assistance required in order to document, perfect and maintain Testim’s rights in and to the Suggestions, at Testim’s cost.

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 Products”). Testim 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 Products. Any Third-Party Product 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.

Confidentiality. 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 Testim to Customer in connection with the Services shall be deemed to be Testim’s confidential information.

Services Warranty. Testim warrants throughout the Term, the Service, if operated as directed by Testim in writing, shall operate substantially in accordance with the functionalities provided by Testim to Customer in writing (“Services Warranty”). Testim’s sole liability and Customer’s sole and exclusive remedy for any breach of the Services Warranty by Testim shall be for Testim 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 Testim’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.

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. TESTIM, 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, TESTIM 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 TESTIM ALSO MAKES NO WARRANTIES WITH RESPECT TO SUCH THIRD PARTY SERVICES AND TESTIM SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTIES OR THIRD PARTY SERVICES. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, TESTIM 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.

Limitation of Liability. IN NO EVENT SHALL TESTIM, 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 TESTIM, 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 TESTIM FROM 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 TESTIM 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.

Indemnification. Customer will defend, indemnify, and hold harmless Testim 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. Testim shall notify Customer of any claim subject to indemnification, provided that Testim’s failure to do so shall not affect Customer’s obligations hereunder, except to the extent that Testim’s failure to promptly notify Customer materially delays or prejudices Customer’s ability to defend the claim. At Testim’s option, Customer will have the right to defend against any such claim with counsel of Customer’s choosing (subject to Testim’s written consent) and to settle such claim as Customer deems appropriate, provided that Customer shall not enter into any settlement without Testim’s prior written consent and provided that Testim may at any time elect to take over control of the defense and settlement of the claim upon written notice to Customer.

Privacy. Testim collects information about Customer through Customer’s subscription to the Services and access to and use of the Website. By subscribing to the Services and/or by accessing and using the Website, Customer agrees that Testim may retain, use, and publish such collected information in accordance with the Testim Privacy Policy which can be found at https://www.testim.io/privacy.

Force Majeure. In the event that either party shall be delayed or prevented from the performance of any obligation hereunder (except with respect to the payment of Fees) by reason of strike, labor 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.

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.

Miscellaneous. The TOS constitutes the entire agreement between Customer and Testim. 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 Testim 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. Testim may freely assign any of its rights and obligation under the TOS. Customer may not assign the TOS without the prior written consent of Testim. 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 contact Testim at: info@testim.io.
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