Webinar: Addressing the Most Common UI Test Automation Challenges
Last Revised: June 15, 2020
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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 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. The sole remedy of Customer in the event of failure to uphold the Services Warranty is to terminate the Services and receive a pro-rated refund of pre-paid Fees for the remainder of the applicable Term, in accordance with Section 10 above.
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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.
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.
Testim will defend, indemnify, and hold harmless Customer and its subsidiaries, licensors, officers, directors and representatives from and against any third party claims, damages, losses, liabilities, costs, fines and expenses (including reasonable attorneys’ fees) directly arising out of: (i) Testim’s breach of any representations and warranties of the TOS or any applicable law, and (ii) a claim that the Services, Websites or performance of these Terms violate third party intellectual property rights.
In the event that either party shall be delayed or prevented from the performance of any obligation hereunder 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. In any event, the Customer will make best effort to make payments on a timely basis to Testim, and any delay will not in any way relieve Customer from any of its obligations with respect to the payment of Fees.
The TOS does not create any third-party beneficiary rights in any individual or entity that is not a party to the TOS.
Testim may update these TOS from time to time. Testim will notify Customer of material changes to these TOS by email, by posting notice of the update on the Website, or by any other reasonable means. Such material changes will take effect seven (7) days after such notice was provided on our Website or sent via e-mail, whichever is the earlier. Otherwise, all other changes to these TOS are effective as of the stated “last revised” and your continued use of the Website and/or Services on or after the last revised date will constitute acceptance of, and agreement to be bound by, those changes. In the event that the terms should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.
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. The rights and obligation under the TOS may not be assigned by either party without the written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed, provide however, that no consent shall be required for a transfer to an Affiliate of a party or in connection with a change of Control of a party. No delay or failure to take any action with respect to any breach of the TOS shall constitute a waiver of such breach or any subsequent or other breach. All waivers must be in writing to be effective. If any provision of the TOS is declared invalid or unenforceable, the remaining provisions of the TOS shall not be affected thereby and shall remain in full force. For any questions, please contact Testim at: [email protected].