APPLITOOLS LTD.– TERMS OF USE OF SERVICE

The following constitute the terms and conditions of access and use of the Service, as defined hereunder, which shall be deemed to have been read and agreed to if you access and use Service.

1.                  Acceptance. By visiting and/or accessing and/or logging into and/or by creating an account and/or by registering for and/or using any of the Service, as defined below, You signify Your assent to these terms and conditions (the “Terms of Use”), as shall be updated from time to time, and the Company’s Privacy Policy currently available at:  www.applitools.com/privacy_policy, Maintenance & Support Policy currently available at:  http://support.applitools.com all of which are incorporated herein by reference. These Terms of Use constitute a binding and enforceable agreement between applitools Ltd., its parent corporations, subsidiaries and affiliates (the “Company”), and you, a person or a corporation accessing and using the Service. 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. If You do not agree to any of these terms, then please do not use or apply to use Service. 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.

2.                  Definitions.

2.1     “Service” means the Applitools Eyes Cloud Service provided by Company through www.applitools.com/login for online Automated Visual Software Testing. The Service may be subject to fees and other related charges, as provided herein and as shall be elected by User before access is granted to the Service; the commercial terms and the various packages available can be viewed in the Company’s Website.

2.2      “You” or “User” means an individual or a company subscribed for use of the Service as set forth in the Order Form, and including anyone authorized to use the Service on their behalf.

2.3     “Website” shall mean the website at www.applitools.com.

2.4     “Target Applications” means a unit performing pre-defined actions and functionalities, as developed by You.

2.5     “Order Form” means the order form submitted by You electronically through the Website for subscribing to the Service. The Order Form shall be deemed an integral part hereof. In the event of inconsistency between the terms of the Order Form and the terms of this Agreement – the terms of the Order Form shall prevail.

2.6     “Checkpoint” means a single execution of visual validations of an application page using Applitools Eyes. Every execution of a visual validation will be counted as one (1) checkpoint.

3.                  Use of Service.  Company hereby grants You a permission to use the Service as set forth in these Terms of Use, provided that: (i) You paid all applicable fees with respect to the Service; (ii) You will not disclose your user name and password to others and you will not allow anyone other than You, directly or indirectly, use the Service with your user name and password ; (iii) You will not copy or distribute any part of the Service, the Content therein, and any form and concept embodied therein, in any medium (iv) You will not alter or modify any part of the Service; and (iv) You will use the Service only with respect to those Target Applications and otherwise comply with the terms and conditions of these Terms of Use. Use of the Service is permitted to a specific user (as noted in the Order Form) and a single seat. If you wish to operate the service on number of seats, additional services must be subscribed for, It is further clarified that 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”); such Software shall be licensed to you according to the terms set forth in the applicable end user license agreement provided with each such Software.  The number of Checkpoint permitted to each User during the performance of the Services shall be limited as follows: (i) Services for a paying User are limited to one thousand (1,000) Checkpoints per week per seat; and (ii) The Services for a non-paying User are limited to twenty five (25) Checkpoints per week per seat (the “Checkpoints Limitation“). It is clarified that calculation of the maximum Checkpoints Limitation entitled to a User will be made in the aggregate with respect to all seats purchased by such User. If you exceed the Checkpoints Limitations (as applicable), the Company may, at its discretion, take on or some of the following actions: (i) 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 (ii) if the breach of the Checkpoints Limitation occurred more than once: (a) if you are a paying User – the Services shall be provided to you at the same level it is provided to non-paying Users for the duration of the applicable week for which the breach was made; or (b) if you are a non-paying User – the Services shall be suspended for the duration of the week with respect to which the breach was made; or (iii) if the breach of Checkpoints Limitation occurred more than three (3) times, terminate this Agreement with immediate effect.

4.                  Changes to the Service; Termination of the Service or Feature. Company reserves the right, at its sole discretion, at any time to modify, improve and 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.

5.                  Service Offering. The Service made available under these Terms of Use is offered under a variety of plans to suit Your needs, as detailed in the Website (the “Plans”). Company may also offer a free trial version of the Service (“Free Trial”) which shall have limited functionalities or shall be limited in time, as more fully described in the Website. For information and description of the different plans, fees applicable and additional usage terms, please refer to the Website. Company may add or remove functionalities or otherwise amend any of the Plans, at its discretion, provided that the Your rights under existing Plans shall not be adversely effected. Without derogating from the foregoing, Company may from time to time offer tailor-made plans customized to meet individual User needs and requirements, in consideration of additional fees. It is clarified that the Company shall not be obligated in any way to provide any third party software and/or service required for the operation or support of the Target Application.

6.                  Payment Methods. A valid credit card, debit card or any other charge card (“Payment Card”) is required in order to acquire any of the Plans. Company may also at any time accept monetary payment through any other payment method as shall be designated by Company from time to time at its sole discretion, including without limitation through a PayPal account or via bank remittance. Upon presentation of any Payment Card information, you warrant that you are the cardholder or an authorized user of such Payment Card, and that the billing information provided is accurate. All Payment Cards are subject to validation checks and authorization by the card issuer. To ensure that your Payment Card is not being used without your consent, Company will validate name, address and other personal information supplied by you during the order process against appropriate third party databases. By accepting these terms and conditions you consent to such checks being made by us. If the issuer of your Payment Card refuses or does not, for any reason, authorize payment to the Company, whether in advance or subsequent to a payment, Company shall be entitled to deny your access to the Service. Your complete billing information is not stored in any way, manner or form whatsoever on Company’s servers but it is nevertheless saved on secure third party servers. You agree to pay Company for all charges at the prices then in effect for any use of the Service by You (including Your employees or agents) using your Payment Card or by means of any other payment method as shall be approved by Company in advance, and you authorize Company to charge such Payment Card for the Service. By approving the purchase of a Plan, you authorize Company to charge the designated Payment Card for the total amount of the purchase.

7.                  Cancellation. 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. It is clarified that unless You indicate us otherwise,  the Service shall be renewed automatically for the period You originally subscribed for.

8.                  User Accounts; Compliance and Monitoring

8.1 In order to use the Service You shall be required to create an account (“Account”) by submitting certain details. Company shall treat information provided by you according to the terms and conditions of the Company’s Privacy Policy, available at [www.applitools.com/privacy_policy]. 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 User Account, by updating Your personal details. 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). Although Company will not be liable for such losses, You may be liable for the losses of the Company or others due to such unauthorized use.

8.2  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 service (in such event, you shall be required to pre-approve Company’s access). Company shall not access any of your confidential information without your prior permission. In the event that it comes to Company’s attention that You are using Your Account in contrary to these terms of Use, Company explicitly reserves the right at any time in its sole discretion to block use of any Account(s) or terminate Your use of the Service, without derogating from any other remedies available to Company according to any applicable law.

8.3  Notwithstanding the aforesaid, Company shall have the sole and absolute discretion to deny any User’s registration and/or access to the Service or any future service of the Company or to discontinue and Service for any Account or Accounts and block such Accounts for any reason whatsoever and at any time, without incurring any liability to Company.

9.                  Use of Information
Company may collect or receive information and data submitted by Users through the Service as set forth in the Privacy Policy and as set forth herein. Any such information may be monitored, retrieved, analyzed and used by Company for creation of general statistics regarding use of the Service and certain functionalities contained therein, utilization of Service and for providing support and maintenance service to you. By using the Service, you authorizes Company to include your name, title, business name, contact information in data bases used for commercial purposes (“Commercial Data Base”) including without limitation providing such Commercial Data Bases to third parties. At any time, you may request to withdraw this authorization and delete such Users’ information from any such Commercial Data Base by furnishing a written notice to Company, via support@applitools.com, however, Company retains the right to save such information for its internal purposes for as long as you use the Service.

10.              Use Limitations.
The Service may only be used as a tool for the purpose of quality assurance of your Target Applications (“Purpose”) and the Service or the content set forth in the Website (including without limitations, the user interfaces and any proprietary information contained therein) may not be used, copied, reproduced, distributed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without the prior written consent of the Company, and Company reserves all rights in and to the Service and such content.
You may not use the Service for any of the following purposes; Company disclaims any and all liabilities, losses and or damages with respect to any use of the Service which constitutes a Prohibited Activity.
It is clarified that the use of the Services shall be limited to the number of Checkpoints as set forth in this Terms of Use and as posted on the Company’s website.

10.1     Engaging in unlawful, indecent, obscene or other morally objectionable activities.

10.2     Disseminating any unlawful, harassing, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable or illegal materials;

10.3     Gaining unauthorized access to other computer systems or to other users of the Service;

10.4     Interfering with any other person’s use of the Service;

10.5     Making and/or transferring and/or storing electronic copies of materials protected by copyright without the express permission of the owner of the material, or otherwise making such use of the Service that infringes third parties intellectual property rights;

10.6     Circumvent, disable or otherwise interfere with security related features or other features of the Website and/or with the use of Service, or enforce any limitations on use of the Website and/or the Service.

11.              Intellectual Property Rights.

all right and title in the Service and its content including without limitation, software (both source and object codes), scripts, graphics, form, text, content of text, and the like  and any and all trademarks, copyrights, service marks and logos, including but not limited to the Applitools Eyes trademark (but excluding trademarks, service marks and logos provided by and owned by you) contained and embodied therein, are owned by or licensed to the Company, and are subject to copyright and other intellectual property rights under Israeli laws, foreign laws and international conventions.

12.              Warranty/Disclaimer

12.1 Company warrants for Your benefit alone, that for a period of sixty (60) days from the date of registering to the Service (the “Warranty Period”), the Service, if operated as directed by Company, shall operate substantially in accordance with the functionalities provided by the Company to you and shall be free material technical defects. 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 the repair the non-conforming functionality of the Service that does not meet this limited warranty, within reasonable time. The foregoing warranty applies only to paid subscriptions and 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, by alterations undertaken without Company’s consent or by faulty repairs; (ii) if the defect is caused by use of a superseded update of that Software that the Company makes generally available to its customers that subscribe for updates of the Software, if the infringement would have been avoided by the use of a current Software Release of the Software that Company provides to its customers; (iii) if the defect is caused by the combination, operation or use of the Service and/or the Software with software, hardware or other materials not licensed hereunder and not conforming to Company’s specifications set forth in the Website; (iv) if the Service is otherwise operated or used in violation of this Agreement or other than in accordance with the documentation. It is hereby clarified that during the Warranty Period or at any time thereafter, 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.

12.2 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, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONSULTANTS, AGENTS AND AFFILIATES (“COMPANY INDEMNITEES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND/OR THE SERVICE, AND THE USE THEREOF IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PURPOSE, OR OTHERWISE.

12.3 COMPANY AND COMPANY INDEMNITEES ASSUME NO LIABILITY OR RESPONSIBILITY FOR (I) ANY UNAUTHORIZED ACCESS TO OR USE OF COMPANY’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE AND THE SERVICE BY ANY THIRD PARTY, OR USER, AND/OR (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE SERVICE OR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE SERVICE.

12.4 Limitation of liability. IN NO EVENT SHALL THE COMPANY AND COMPANY INDEMNITEES BE LIABLE FOR ANY, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE USE OF, THE VISIT IN, 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. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. 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 TERMS OF USE, IN NO EVENT SHALL SUCH LIABILITY EXCEED THE FEES PAID TO COMPANY BY YOU IN RELATION TO THAT CERTAIN DURING THE SIX (6) MONTHS PRECEDING THE EVENT, WHICH IS THE SUBJECT MATTER OF SUCH CLAIM. YOU AND THE COMPANY 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.

13.              Indemnity. You agree to defend, indemnify and hold harmless the Company, and Company Indemnitees from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) a violation by You of any term of these Terms of Use; (ii) a violation by You of any third party right, including without limitation any copyright, trademark, property, or privacy right, while using the Service or in connection thereto. This obligation for defense, indemnification, and holding harmless will survive the termination or expiration of these Terms of Use and Your use of the Service.

14.              General. The laws of the state of Israel shall govern all issued arising under or relating to these Terms of Use, without giving effect to the conflict of laws principles thereof. All disputes arising under or relating to these Terms of Use shall be resolved exclusively in the appropriate court sitting in Tel Aviv- Jaffa, Israel. This Agreement 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 Terms of Use 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 Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use 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 Terms of Use shall not constitute a waiver of such right or provision. Company reserves the right to amend and/or update these Terms of Use at any time and without notice, and Your use of the Service following any amendment of these Terms of Use will signify Your assent to and acceptance of its revised terms, provided that the your use of the Service is not adversely effected. These Terms of Use, 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 against any User.  For any questions, please contact us at: info@applitools.com.

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