PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TOS”) CAREFULLY BEFORE USING OR ACCESSING THE WEBSITE OR THE SERVICE (DEFINED BELOW).
THESE TOS ARE APPLICABLE TO ALL TYPES OF USE OF THE WEBSITE www.applitools.com (THE “WEBSITE”) OR THE SERVICE (INCLUDING PUBLIC CLOUD OR DEDICATED CLOUD).
2. THE SERVICE.
2.1. The Company’s service includes the Applitools Eyes Public Cloud Service or Applitools Eyes Dedicated Cloud Service which is provided via the address: www.applitools.com/login for automated visual software testing (the “Service”). In addition to these TOS, You and the Company may execute an order form or a quote for the Service (an “Order Form”). Any Order Forms 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 only with respect to such conflict. In order to use the Service, You will have to maintain a proper internet connection and 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.
2.2. Free Trial Use. To the extent the Service is provided for free on a trial basis (“Free Trial Service“), the User is provided with a non-exclusive, non-transferable right to use the Free Trial Service for the purpose of internal Non Commercial evaluation of the Service. Company may suspend or terminate the Free Trial Service at any time and for any reason. Except for the limited license under this Section 2.2, the Free Trial Service may not be used for any other purpose and in any other way. “Non Commercial” means not using the Free Trial Service for any commercial advantage or monetary compensation.
3.1. 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 functions, as developed by You. Use of the Service or the Free Trial Service is permitted to one specific user (unless otherwise agreed to in the Order Form) (a “Permitted User”) and use of one Permitted User’s login credentials cannot be shared within Your organization or with any third party. If You wish to operate the Service or the Free Trial Service with more than one Permitted User (or more than the number of Permitted Users specified in the Order From), You must execute an Order Form for such additional Permitted Users with Company.
3.2 “Pages” are the default license unit for the Service, unless otherwise specified in the Order Form. The number of Pages permitted per month shall be limited as specified in the Order Form, the “Pages Limitation”. “Page” means a unique Checkpoint regardless of how many times the Checkpoint is executed, and regardless of the browser, device, or browser version. Usage of the Service is subject to a reasonable commercial use limit of 1,000 Checkpoints per Page per month.
3.3 If applicable, the number of Checkpoints permitted for each Permitted User shall be limited as follows: (i) for each Permitted User, up to 1,000 Checkpoints per month, unless set forth otherwise in the Order Form), or (ii) for a Free Trial Service Permitted User, up to 100 Checkpoints per month per Permitted User (collectively, the “Checkpoints Limitation“). “Checkpoint” means a single execution of a visual validation of a Target Application’s page or screen image using the Service so that every execution of a visual validation will be counted as one (1) Checkpoint.
3.4. The number of maximum Concurrent Executions shall be specified in the Order Form. “Concurrent Executions” mean the simultaneous opening of more than one test from Your Account. Where no such maximum is specified, the maximum number of Concurrent Executions of the Service shall be one (1) per each Permitted User, or each 1,000 Checkpoints during the Term (“Concurrent Executions Limitation”) and up to a maximum of 40 concurrencies (more than 40 concurrencies must be explicitly stated in the Order Form).
3.5. Unless otherwise specified in the Order, if You exceed the Pages Limitation, Checkpoints Limitation, Concurrent Executions Limitation, or number of Permitted Users, the Company may, at its sole discretion, take the following actions: (a) reduce certain functionalities or reduce the performance of the Service, including response times of the Services, until the breach is corrected; or (b) if the breach of Pages Limitation, Checkpoints Limitation, Concurrent Executions Limitation or Permitted users occurs more than three (3) times, terminate this Agreement with immediate effect. It is clarified that calculation of the maximum Checkpoints Limitation and Concurrent Executions Limitation will be made in the aggregate with respect to all Pages or Permitted User(s) e.g. 20 Permitted Users may collectively execute up to 20 Concurrent Executions and up to 20,000 Checkpoints monthly during the Term, and a 20 Page license may execute up to 20,000 Checkpoints per month.
4. LICENSE RESTRICTIONS. The Service may only be used for the purpose of quality assurance of Your Target Applications. You may not use the Service to perform services on behalf of any third party. 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, use 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. Without derogating from any other remedy available 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 “Order Form Term”) and if no such time period was specified, then the Service shall be for an initial period of 12 months from the date You accessed the Service (“Initial Term”). Following the Initial Term these TOS shall automatically renew for successive 12 month periods (each “Renewal Term“), unless one party provides written notice to the other party within ninety (90) days prior to the expiration of the then current Renewal Term of its intention not to renew this Agreement. The Order Form Term, or the Initial Term along with any Renewal Term, is referred to herein as 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 in writing 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. You shall not be entitled to any refund for cancellation prior to the end of the subscription period. Sections 4, 5, and 7-12 shall survive expiration or termination of these TOS.
6. PAYMENT AND PAYMENT TERMS. Payment shall be due within thirty (30) days from the date of Company’s invoice, unless otherwise agreed to in the Order Form.
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 a manner 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. USE OF INFORMATION.
8.2. Data Processing Agreement. If You are subject to the GDPR, please download Company’s Data Processing Agreement available at: https://applitools.com/downloads/Applitools_DPA_for_customers.pdf (“DPA”), sign it and return it to email@example.com. 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.
8.3. You hereby grant Us the permission to use Your company name and logo on Company’s website and customer lists.
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 documentation 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.
11. 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.
12. 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.
13. 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 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 Your use of the Service is not adversely affected. 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. Company objects to any order acknowledgment or other type of order documentation issued by You that states terms in addition to or different than, or which vary from, the terms of these TOS and/or the applicable Order Form; such additional, different or varying terms will not be part of any agreement between Company and User, even if such order documentation purports to govern or supersede these TOS. These TOS, including the Order Forms, constitute the entire agreement of the parties with respect to the subject matter hereto, supersedes any prior agreements between the parties and may not be modified by the terms of any invoice, shrink-wrap agreement or other document, or by any usage, custom, or course of dealing, without the mutual written consent of both parties. For any questions, please contact us at: firstname.lastname@example.org. 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.