Last Updated August 10, 2017
Big Tester, Inc.
The following service terms (the “Service Terms”) shall be deemed incorporated by reference into each Subscription Order between Big Tester, Inc. (“Big Tester”) and the customer identified thereon (“Customer”). The Service Terms and the applicable Subscription Order shall be collectively known as the “Agreement.”
1.1 “Big Tester Materials” means all proprietary materials provided by Big Tester to Customer in connection with the Services or the Agreement.
1.2 “Customer Apps” means mobile applications developed by or for Customer.
1.3 “Fees” means the fees payable by Customer to Big Tester for the Services as set forth in the Subscription Order.
1.4 “Services” means the hosted services made available by Big Tester through the Site as described in the Subscription Order that enable Customer to perform automated testing of the Customer Apps.
1.5 “Site” means the Big Tester website located at https://www.bigtester.com, including without limitation all sub-domains thereof, through which the Services will be provided.
1.6 “Subscription Order” means the physical, electronic or online subscription order form, as applicable, which is agreed to by Big Tester and Customer and further describes the Services purchased by Customer from Big Tester.
2.1 Services License. Big Tester hereby grants Customer the non-transferable, non-exclusive right and license during the Term (defined in Section 4.1) to access and use the Services for the sole purpose of testing the Customer Apps for which Fees have been paid. Customer shall not use the Services for any other purpose. Customer is responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Services. Big Tester will provide support to Customer in the use of the Services via email.
2.2 Registration. In order to use the Services, Customer must first register for an account on the Site by providing all requested Customer contact, billing and payment information. Customer agrees that the information Customer provides to Big Tester upon registration and, at all other times, will be true, accurate, current, and complete. Customer also agrees that Customer will ensure that this information is kept accurate and up-to-date at all times. Customer is responsible for (a) ensuring that Customer’s account is used solely in accordance with the Agreement, (b) maintaining the confidentiality of all log-in credentials for Customer’s account, and (c) for the activities of any person accessing the Services or Site using Customer’s account.
2.3 Data Rights. In connection with the operation of the Services, Big Tester collects data regarding Customer’s use of the Services (such data, “Customer Data”). Customer grants Big Tester (and its third party vendors subject to confidentiality obligations) the right to use and reproduce the Customer Data solely in connection with Customer’s use of the Service. Customer agrees that Big Tester may use, reproduce and distribute aggregated data that contains Customer Data provided that such data is anonymous and not in any way identifiable to Customer or any Customer App.
2.4 Restrictions. Customer shall have no rights or licenses with respect to the Services or the Big Tester Materials except as expressly provided in the Agreement. Without limiting the generality of the foregoing, except as expressly provided in the Agreement, Customer may not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer any part of the Services or the Big Tester Materials; (b) make all or any part of the Services or the Big Tester Materials available to any third party; (c) use any part of the Services or the Big Tester Materials on a service bureau basis; (d) to the extent valid under applicable law, decompile, reverse engineer, or disassemble any part of the Services or the Big Tester Materials; (f) create derivative works based on the Services or the Big Tester Materials; (g) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on any part of the Services or the Big Tester Materials or during the use and operation of any part of the Services or the Big Tester Materials or (h) use the Services or the Big Tester Materials (i) to violate applicable law; (ii) to send unsolicited messages, (iii) to interfere with the Big Tester services provided to others (iv) to collect or use personal or confidential information of others or (v) to gain or attempt to gain unauthorized access to other computers or devices.
- FEES; PAYMENT.
3.1 Fees. Customer agrees to pay Big Tester all Fees due with respect to Customer’s use of the Services as set forth in the Subscription Order. All Fees are payable in US dollars. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to the Agreement, other than taxes based on Big Tester’s net income. All Fees are non-refundable except as otherwise provided herein.
3.2 Credit Cards and Other Payment Methods. If the Subscription Order specifies that Customer will pay Fees by credit card or other electronic payment method (the “Payment Method”), Customer will provide Big Tester with information through the Site as required to enable Big Tester to utilize the Payment Method. Customer authorizes Big Tester to utilize the Payment Method for all Fees payable under the Agreement.
- TERM; TERMINATION.
4.1 Term. The “Term” of the Agreement is set forth in the Subscription Order. If no Term is set forth in the Subscription Order, the term of the Agreement shall commence on the Effective Date and continue for 12 months.
4.2 Termination for Cause. Either party may terminate the Agreement effective on written notice if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days after receiving written notice of the breach from the non-breaching party.
4.3 Effect of Termination. Sections 1, 2.3, 3, 4.3, 5.2 and 6 through 9 of the Service Terms shall survive expiration or termination of the Agreement. Upon termination or expiration of the Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Services, and at Big Tester’s request, promptly return all Big Tester Materials and certify such return in writing.
- WARRANTY AND DISCLAIMERS.
5.1 Warranty. Big Tester warrants that the Services will be provided in accordance with the published specifications for the Services. Big Tester also warrants that Customer’s use of the Services will not infringe or misappropriate any Canada patent, copyright, trademark or trade secret rights of any third party and will indemnify Customer against any third party infringement or misappropriation claims as set forth in Section 6.1. No warranties are provided with respect to free trials or beta features.
5.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICES AND Big Tester MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) IS AT CUSTOMER’S SOLE RISK. Big Tester AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES OR THE Big Tester MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE.
6.1 Big Tester Indemnification. Big Tester agrees to indemnify, defend and hold Customer and its affiliates and their respective directors, officers, employees and contractors harmless from and against any liabilities, damages or expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent alleging that the technology underlying the Services, or any portion thereof, infringes such third party’s Canada patent, copyright or trademark or misappropriates such third party’s trade secret, provided that Customer: (a) promptly notifies Big Tester in writing of the claim, except that any failure to provide this notice promptly only relieves Big Tester of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (b) grants Big Tester sole control of the defense and settlement of the claim; and (c) provides Big Tester, at Big Tester’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. In the event of a claim, demand, action or proceeding that the technology underlying the Service, or any portion thereof, infringes or misappropriates any third party intellectual property or other right or, if in Big Tester’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, Big Tester shall have the right, at Big Tester’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the Services or (ii) modify or replace, in whole or in part, the affected portion of the Services to eliminate the infringement or misappropriation. If Big Tester is unable to achieve either of the foregoing in a commercially reasonable manner, Big Tester shall have the right to immediately terminate the Agreement upon written notice to Customer without liability therefor other than the refund of any Fees paid in advance by Customer. The provisions of this Section constitute Customer’s sole remedy and Big Tester’s exclusive liability related to the Services with respect to any infringement, violation, or misappropriation of any intellectual property right.
7.1 Confidential Information. “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within 15 days of the disclosure. In the case of Big Tester, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms. In the case of Customer, Confidential Information includes the Customer Data. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
7.2 Use and Disclosure Restrictions. Each party agrees not to use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under the Agreement. Except as otherwise permitted by the Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of the Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the provisions of the Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
- LIMITATION OF LIABILITY.
8.1 LIMITATION OF DAMAGES. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTIONS 2.4 (SERVICES RESTRICTIONS), 6 (INDEMNIFICATION), OR 7 (CONFIDENTIALITY), IN NO EVENT WILL Big Tester (INCLUDING ITS LICENSORS) OR CUSTOMER BE LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
8.2 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTIONS 2.4 (SERVICES RESTRICTIONS), 6 (INDEMNIFICATION) OR 7 (CONFIDENTIALITY), IN NO EVENT WILL Big Tester (INCLUDING ITS LICENSORS) OR CUSTOMER BE LIABLE FOR ANY LOSSES AND DAMAGES IN THE AGGREGATE IN EXCESS OF THE TOTAL FEES PAID AND PAYABLE TO Big Tester UNDER THE AGREEMENT DURING THE THEN CURRENT TERM, AND WHETHER OR NOT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.1 Export Laws. Customer acknowledges and agrees that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data. Customer shall not export or re-export any part of the Services or the Big Tester Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.
9.2 Relationship of the Parties. The parties are independent contractors with respect to each other. The Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
9.3 Assignment. Neither party may assign the Agreement without the other party’s prior written consent which shall not be unreasonably withheld, provided that either party may, upon written notice to the other party, assign the Agreement in connection with the sale of substantially all of its business assets. Subject to the foregoing, the Agreement will inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
9.4 Force Majeure. Neither party will be responsible for any failure or delay in its performance under the Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
9.5 Notices. All notices under the Agreement shall be given in writing and sent by registered mail, internationally recognized carrier, or email, or shall be delivered by hand to following addresses:
Big Tester, Inc.
50 Rosehill Ave, Suite 802
Toronto, On M4T1G6
legal @ bigtester.com
Via information provided in the Subscription Order.
All notices shall be presumed to have been received when they are hand delivered, or five business days after their mailing, or on the business day following the day of a successful email. Either party may change its address for notice by providing written notice of such change to the other party.
9.6 Waiver. A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
9.7 Severability; Counterparts. If any provision, or portion thereof, of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of the Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.
9.8 Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue under the Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
9.10 Entire Agreement. The Agreement, including the Subscription Order, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Any amendments to the Agreement shall only be valid if in writing and signed by each party. Nothing contained in any Customer purchase order, order acceptance form or other similar document shall in any way modify the Agreement or add any additional provisions to the Agreement. Subscription Orders may be executed with facsimile signatures and in counterparts.