By accepting this document or otherwise using the Services provided by TestCraft Technologies Ltd. (the “Company”), the Customer (as defined below) agrees to be legally bound by these Terms of Service (the “Terms”).
“Customer” means an entity which purchased Services from the Company, by executing an Order.
“Order” means a written order for the provision of the Services submitted by the Customer and approved in writing by the Company.
“Users” means number of Customer’s users which can use the Services simultaneously (which shall be equal to the number of projects and/or software modules which can be tested by the Customer at the same time).
“Services” mean the Company’s proprietary cloud based automatic QA software testing and any additional services as may further be specified in the Order.
SERVICES. Subject to Customer’s compliance with the Terms hereof and the Order, the Company shall provide the Customer with the Services described in the applicable Order.
Prices of the Services are set in the Order. Unless otherwise specified in the Order, all fees shall be payable on a monthly basis, each month in advance. All payments are non-refundable regardless of the Customer’s actual use of the Services and whether the maximum number of Users or hours ordered was utilized.
All amounts are payable in the currency specified on the Order. Payments shall be made by wire transfer to the Company’s bank account designated in the Order. Without limitation to any other remedies available to the Company, failure to make payment on time shall be subject to a 1.5% monthly interest on all amounts due and unpaid.
Payment to the Company shall be made in full, with no deductions for any third party or bank fees, commissions, levies or charges, but subject to tax withholding (if and to the extent required by applicable law). Customer shall not be liable for any income tax assessed to the Company.
The Company retains sole and exclusive ownership of all rights, interests and title in the Services, its code and software and any underlying intellectual property rights and know-how associated therewith or with any part thereto, including without limitation, any and all trademarks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection therewith. Nothing in this Agreement shall prohibit the Company in any manner from using, developing, marketing, licensing, or otherwise disposing of the Services or concepts, software or code embodied therein anywhere in the world; nor shall anything herein be construed to grant to Customer any rights in or to any present or future services or products of the Company, whether or not similar to the Services.
The results of the Services (i.e., the reports that will be provided to the Customer), are the sole property of the Customer. The Customer has the right to use such reports in any way, in its sole discretion.
Customer acknowledges that the Services and any documentation pertaining thereto, are confidential and proprietary to the Company, and Customer agrees to maintain them and information regarding the Service’s design and implementation as confidential information, using at a minimum the same degree of care as is used for Customer’s own trade secrets and in any event not less than reasonable degree of care, and not to disclose it to any third party without the Company’s prior written authorization, other than as provided for herein.
Company acknowledges that any information provided by Customer to enable the performance of the Services by the Company, is confidential and proprietary to the Customer, and Company agrees to maintain such information as confidential information, using at a minimum the same degree of care as is used for Company’s own trade secrets and in any event not less than reasonable degree of care, and not to disclose it to any third party without the Customer’s prior written authorization, other than as provided for herein.
The Customer undertakes not to transfer, sell, assign, sublicense or make any disposition of the Services, or its access to the Services (including its assigned Customer’s account) to any other party. The use of the Services by the Customer shall be only by its authorized and qualified employees and service providers, in accordance with the number of Users set out in the Order.
The Customer undertakes not to: (i) attempt to copy, decompile, disassemble, modify or reverse-engineer the Services in any form or by any means; (ii) interfere with or disrupt the integrity or performance of the Services; (iii) attempt to gain unauthorized access to the Service’s software or code; or (iv) utilize the Services except in accordance with the Terms.
The term of provision of the Services shall be as specified in the applicable Order and can be extended by the parties by executing an additional Order. Notwithstanding the aforesaid, the Company may terminate the Order upon a 5 days prior written notice to the Customer in the event that the Customer is in material breach of the Terms hereof. For the avoidance of doubt, non-payment or late payment of any fees by the Customer shall be considered a material breach.
Survival. The following Sections shall survive any expiration or termination of an Order; 4 (Ownership & Confidentiality), 6.2 (Survival), 7 (Warranty Disclaimer), 8 (Limitation of Liability) and 9 (General Terms).
WARRANTY DISCLAIMER. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND ARE USED AT THE CUSTOMER’S OWN RISK. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SERVICES BEING ERROR FREE OR UNINTERRUPTED, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THE SERVICES INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS OR QUALITY. IF APPLICABLE LAW DOES NOT ALLOW FOR THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATIONS ON LIABILITY. THE COMPANY AND ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM CUSTOMER’S USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITATION TO THE OTHER PROVISIONS HEREIN, EXCEPT WITH RESPECT TO FRAUD OR MALICIOUS ACTS BY THE COMPANY, OR A BREACH OF SECTION 4.4 ABOVE (CONFIDENTIALITY), IN ANY EVENT THE COMPANY’S ENTIRE LIABILITY SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY BY CUSTOMER UNDER THE APPLICABLE ORDER IN THE THREE CALENDAR MONTHS PRIOR TO THE DATE OF THE CLAIM.
Entire Agreement. These Terms, together with the Order, constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the Order. Any modification or amendment must be in writing (including the exchange of emails), by authorized representatives of both parties.
Notices. All advance notices must be made during the business hours of the receiving party. Any notice or communication to be exchanged between the parties in connection herewith shall be in writing and shall be deemed to have been received by the addressee (i) if given by registered or certified mail, on the third business day after such notice is deposited in overnight mail; and (ii) if by facsimile or by electronic mail, 24 hours following its delivery.
Waiver. The waiver by either party of a breach of any of the terms and conditions hereof must be in writing and will not be construed as a waiver of any subsequent breach of such term or condition or the waiver of the provision itself. A party’s performance after the other party’s breach shall not be construed as a waiver of that breach.
Publicity. Customer hereby approves to be featured on the Company’s customer list and grants the Company the right to present itself as a supplier of its Services to the Customer.
Assignment. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that the Company may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of the Company’s assets or voting securities.
Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without regard to the conflicts of law provisions thereof. Any claim may be solely brought to the competent courts of the Tel-Aviv district.