PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TOS”) CAREFULLY BEFORE USING OR ACCESSING THIS WEBSITE OR SUBSCRIBING TO THE SERVICE (DEFINED BELOW).
THESE TOS ARE APPLICABLE TO ALL USES OF THE WEBSITE www.applitools.com (THE “WEBSITE”) OR THE SERVICE (INCLUDING BASIC CLOUD OR DEDICATED CLUB) EXCEPT “ON PREMISE”. IF YOUR ORDER FORM (DEFINED BELOW) SPECIFIES THAT THE CATEGORY YOU ARE USING IS “ON PREMISE” THE TERMS OF SERVICE IN THE FOLLOWING ADDRESS: https://applitools.com/downloads/Applitools_TOS_On_Premise.pdf ARE APPLICABLE TO YOUR USE
2. THE SERVICE. The Company’s service includes the Applitools Eyes Cloud Service or Applitools Eyes Dedicated Cloud Service which is provided via the address: https://applitools.com/login for automated visual software testing, all as specified in the order form or signed quote submitted by You via the Website or, if applicable, to the Company by other means (the “Service” and “Order Form” respectively). Any Order Forms submitted by You and accepted by the Company shall be deemed an integral part of these TOS and in the event of any conflict between the Order Form and these TOS, the Order Form shall prevail with respect to such conflict. In order to use the Service You will have to maintain a proper internet connection and also you may be required to install one of the Company’s SDK software, available at the Website (the “Software”). Any support services shall be provided by the Company or a third party authorized by the Company for such purpose, as set forth in the Website or the Order Form.
3. LICENSE. Subject to your compliance with the TOS and the payment of the applicable fees, Company hereby grants You, during the Term, a non-exclusive, non-transferable, revocable, license to access the Service for your internal business purposes with respect to your Target Application (the “License”). “Target Application” means a unit performing pre-defined actions and functionalities, as developed by You. Use of the Service is permitted to a specific user (as noted in the Order Form) and a single seat (a “Permitted User”). If you wish to operate the Service on number of seats, additional services must be subscribed for. The number of Checkpoint permitted for each Permitted User during the performance of the Services shall be limited as follows: (i) for a paying User, up to 1,000 visual Checkpoints per month (or, up to 1,000 visual checkpoints per seat per month with a minimum of 10 seats, if You ordered “Dedicated Cloud” under the Order Form) unless set forth otherwise (and agreed upon) in the Order Form, or (ii) for a non-paying User, up to 25 Checkpoints per month per seat (Collectively, the “Checkpoints Limitation“). “Checkpoint” means a single execution of visual validations of an application page using the Service so that every execution of a visual validation will be counted as one (1) ‘checkpoint’. It is clarified that calculation of the maximum Checkpoints Limitation entitled to a Permitted User will be made in the aggregate with respect to all seats purchased by such Permitted User. If you exceed the Checkpoints Limitation, the Company may, at its sole discretion, take on or some of the following actions: (a) reduce certain functionalities or reduce the performance of the Service, including response times of the Services, until the lapse of the week period with respect to which the breach was made; or (b) if the breach of Checkpoints Limitation occurred more than three (3) times, terminate this Agreement with immediate effect.
4. LICENSE RESTRICTIONS. The Service may only be used as a tool for the purpose of quality assurance of your Target Applications. You shall not, and shall not allow any third party to: (i) copy, sell, rent, lease, sublicense or distribute any part of the Service, the content therein, and any form and concept embodied therein, in any medium (ii) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Service or any components thereof; (iii) use any robot, spider, scraper, or other automated means to access or monitor the Service for any purpose; (iv) remove, deface, obscure, or alter the Company’s or any third party's identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service; (v) use the Service to develop a similar or competing product or software; (vi) alter or modify any part of the Service; (vii) use the Service not with respect to the Target Applications; and (viii) 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. Please note that in order to utilize any of the Service, You are required to obtain from Company access information (including user name, password, or otherwise, as applicable), which may be subject to applicable fees and charges to be paid to Company. You will indemnify, defend and hold Company harmless from all losses, fees and damages suffered by Company and arising from Your breach of the terms of this Section.
5. TERM AND TERMINATION. The License shall commence as soon as You have been granted access to the Service and shall be in effect for the term specified in the Order Form (the “Term”). Company reserves the right, at its sole discretion, at any time to modify, improve, correct or discontinue, temporarily or permanently, the Service or any part thereof with or without notice. If Company in its discretion chooses to cease providing the current version of the Service or any of its features and/or specific functions, whether through discontinuation of the Service or by upgrading or downgrading the Service to a newer version, You may not be able to continue using the previous version of the Service. Features and/or functions of previous Service versions might be removed on future versions thereof. You agree that Company shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Service. It is clarified that unless You indicate us otherwise, the Service shall be renewed automatically for the period You originally subscribed for in the Order Form. You may cancel your account at any time, through your account page; such cancellation shall be entered into effect immediately. No refund shall be entitled to you for cancellation prior to the lapse of the period subscribed for. Sections 4, 5, and 7-11 shall survive expiration or termination of these TOS.
6. PAYMENT AND PAYMENT TERMS. The Service made available under these TOS is offered under a variety of plans to suit Your needs, as detailed in the Order Form. Additional plans may be purchased by You by executing additional Order Forms with respect thereto. Payment shall be made as set forth in the Order Form. Unless provided otherwise in the Order Form, the payment shall be due within thirty (30) days from the date of the invoice.
7. USER ACCOUNTS; COMPLIANCE AND MONITORING. In order to use the Service You shall be required to create an account by submitting certain details to the Company, whether through the Website or the Order Form (“Account”). You must ensure that the details provided by You on registration or at any time are correct and complete and must inform the Company immediately of any changes to the information that You provided when registering and creating Your Account. Password and Account access details must be kept safe, secure and confidential at all times and must not be disclosed or shared with anyone. You hereby release the Company from any and all liability for any losses and/or damages caused to you or to your clients by any unauthorized access and/or use of Account(s). Company reserves the right to monitor Your use of the Service in as much as required to ensure that Your use of the Service is in accordance with the permitted uses as set forth herein and for providing support services. In the event that it comes to Company’s attention that You are using Your Account in contrary to these TOS, Company reserves the right to block use of Your Account(s) or terminate Your use of the Service, without derogating from any other remedies available to Company according to any applicable law.
8.2. Data Processing Agreement. If you are a customer subject to the GDPR, please download our Data Processing Agreement available at https://applitools.com/downloads/Applitools_DPA_for_customers.pdf (“DPA”), sign it and return it signed to [firstname.lastname@example.org]. You hereby agree that any processing of information performed by us on your behalf shall be subject to the terms and conditions of the DPA. You will indemnify, defend and hold Company harmless from all losses, liabilities fees and damages of any kind (including attorney fees) related to: (i) your breach of your representations, warranties or obligations under these TOS and/or the DPA; (ii) your failure to comply with the obligations applicable to you under the GDPR and/or data protection laws or regulations; and/or (iii) for the processing of personal data without a DPA, in the event you fail to return to us the DPA duly signed by you.
9. INTELLECTUAL PROPERTY RIGHTS. All right, title and interest in the Service and the Software, including all worldwide intellectual property rights therein, and including without limitation, content, software (both source and object codes), scripts, graphics, form, text, content of text, and any and all trademarks, copyrights, service marks and logos, the Applitools Eyes trademark contained and embodied therein, including any enhancements, derivative work, know-how and modifications thereto, are solely owned by or licensed to the Company. If You contacts Us with any suggestions or feedback data regarding the Service and/or the Software, such feedback shall be deemed to be the sole property of Company and You hereby irrevocably transfer and assign to Company all intellectual property rights in such feedback and waive any and all moral rights that You may have in respect thereto.
10.1. Company warrants that for a period of sixty (60) days from the date of registering to the Service, the Service, if operated as directed by Company, shall operate substantially in accordance with the functionalities provided by the Company to you (the “Warranty Period”). Company does not warrant however that your use of the Service will be uninterrupted or that the operation of the Service will be error free or secure. The Company’s sole liability and your sole and exclusive remedy for any breach of this warranty by Company shall be to repair the non-conforming functionality of the Service that does not meet this warranty, within reasonable time. The foregoing warranty applies only with respect to failures in operation of the Service that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty usage or set-up; (ii) to alterations undertaken without Company’s prior written consent; (iii) if the defect is caused by the Target Application; (iv) if the Service is otherwise operated or used in violation of this Agreement or other than in accordance with its documentation. You hereby confirm that you are the owner or authorized licensor of the Target Application and hold the requisite authorization and consent required for the performance of the Service with respect to the Target Application. You shall be solely responsible for Your activities in connection with the Service and compliance with these TOS.
10.2. OTHER THAN THE EXPLICIT WARRANTY SET FORTH IN THE FOREGOING SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES IS PROVIDED “AS IS” BASIS AND THE COMPANY AND ITS AFFILIATES (INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE AND/OR THE SERVICE, AND THE USE THEREOF IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PURPOSE, OR OTHERWISE.
10.3 Limitation of liability. THE COMPANY SHALL NOT BE LIABLE FOR ANY, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS WHATSOEVER, RESULTING FROM THE USE OF OR ACCESS TO THE WEBSITE AND THE SERVICE HEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, COMPANY IS FOUND LIABLE FOR DAMAGES OF ANY KIND IN CONNECTION WITH THE WEBSITE, SERVICE AND/OR THESE TERM OF SERVICE, IN NO EVENT SHALL SUCH LIABILITY EXCEED IN THE AGGREGATE THE FEES PAID TO COMPANY BY YOU IN THE 12 MONTHS PRECEDING THE EVENT, WHICH IS THE SUBJECT MATTER OF SUCH CLAIM. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11. CONFIDENTIALITY. Each party agrees to keep confidential and to use only for purposes of performing its obligation under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement 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). You acknowledge that the Service and the Software, including the results of any performance tests of the Service or Software shall be deemed as the Company’s confidential information.
12. GENERAL. The laws of the state of California shall govern all issues arising under or relating to these TOS, without giving effect to the conflict of laws principles thereof. All disputes arising under or relating to these TOS shall be resolved exclusively in the competent court sitting in Santa Clara, California. 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. If any provision of these TOS is deemed to be invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these TOS, which shall remain in full force and effect. No waiver of any term of this these TOS shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under these TOS shall not constitute a waiver of such right or provision. Company reserves the right to amend and/or update these TOS at any time and without notice, and Your use of the Service following any amendment of these TOS will signify Your assent to and acceptance of its revised terms, provided that the your use of the Service is not adversely effected. These TOS, and any rights granted hereunder, may not be transferred or assigned by You, but may be assigned by the Company without restriction including any claim Company may have. For any questions, please contact us at: email@example.com. YOU AGREE THAT ANY CLAIM BASED ON CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE, WHETHER IN CONTRACT, IN TORT OR IN GENERAL UNDER APPLICABLE LAW, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURS. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.