1 Scope and Subject Matter of Agreement
1.1 The cloud testing platform www.testobject.com (hereinafter referred to as the “Platform”) is operated by TestObject GmbH, located at Neuendorfstr. 18b, 16761 Hennigsdorf (hereinafter referred to as “TestObject” or “we”).
1.2 TestObject offers the Platform to entrepreneurs only. Entrepreneurs are individuals or legal entities or partnerships having legal capacity who act in their commercial or independent professional capacity when entering into a legal transaction.
1.3 By signing up for an account, selecting a user name and a password and providing a valid e-mail address, you invite TestObject to make you an offer to enter into an agreement entitling you to use the Platform pursuant to these Terms of Service (this “Agreement”). TestObject will make such offer by sending you an activation link by e-mail. The Agreement is concluded if and when you activate your account by clicking the activation link.
1.4 The Platform lets you test your mobile applications. This includes native applications (“Apps”), web applications (“Web-Apps”) and hybrid applications (“hybrid apps”). By uploading your mobile application, respectively specify its address from the platform you will be enabled to access the basic products provided by TestObject (the “Products”).
1.4.1 The “Products” are the basic services made available by TestObject through the Platform, which include access to our website, use of our cloud testing environment and our API, and may also include other software or services TestObject may at its discretion decide to integrate into the Platform from time to time.
1.5 Your use of the TestObject Products is exclusively subject to these Terms of Service. Your general terms and conditions will become part of this Agreement only if expressly agreed in writing between you and TestObject.
1.6 TestObject reserves the right to modify these Terms of Service at any time, with the exception of the provisions determining the parties’ primary contractual obligations hereunder. The parties’ primary contractual obligations will not be changed in the manner described in this Section 1.6. TestObject will inform you of any proposed modification of these Terms of Service, provide you with the proposed new version of these Terms of Service and notify you of the date when these new Terms of Service will be implemented. Any change is subject to a prior written notice of four weeks. If you do not expressly refuse the respective modification within six weeks from the date on which the new Terms of Service are implemented, you are deemed to have approved the modification of these Terms of Service. In the aforementioned notice of the proposed modification, TestObject will inform you expressly and specifically about the right to object within the six weeks period and the consequences of not expressly refusing the proposed modification.
2 TestObject’s Obligations
2.1 TestObject shall operate the Platform with an annual average availability of 98% on a best effort basis – except for downtime by maintenance, software updates and when the web server cannot be accessed via the internet due to difficulties that are outside the scope of influence of TestObject (as force majeure, third party fault, or similar circumstances).
2.2 TestObject will provide the Products and grant access to the Platform subject to these Terms of Service.
2.3 Subject to TestObject’s acceptance of any separate offers submitted via the according functionalities of the Platform, and subject in each case to the payment of separate fees, TestObject will provide access to the TestObject Add-Ons subject to these Terms of Service.
3 Your Obligations; Use of the TestObject Products
3.1 You will use the Products appropriately and reasonably. In particular, you will
3.1.1 keep current your registration data, including without limitation your e-mail address and, if applicable, billing information (including billing address).
3.1.2 ensure the fulfillment of all legal regulations and licensing requirements and comply with all applicable data privacy laws and data security regulations;
3.1.3 keep your password confidential and inform TestObject immediately if you have reason to suspect your password has been disclosed to or otherwise obtained by any third party; and
3.1.4 notify TestObject about any experienced deficiencies or damages to the TestObject Porducts (error notification) and reasonably assist TestObject in the identification of any such deficiencies or damages and their causes, and in the remedy of such deficiencies or damages.
3.2 In using the Products, you will not do or attempt to do any of the following:
3.2.1 abuse the access to TestObject’s Products and/or engage in any illegal or unlawful actions in relation to the Products and the Platform in any form.
3.2.2 upload to the Platform any kind of malware, spyware, viruses, worms, Trojan horses or similar harmful code;
3.2.3 otherwise abuse or manipulate the Services or use the Services in a way that violates these Terms of Service;
3.2.4 extract / read / change the content or passwords / e-Mails, files or similar assets belonging to a system operator or other users of the Products.
3.2.5 interrupt or block any communication features, e.g. causing overloads or distributing SPAM;
3.2.6 distribute or enable access to illegal content of any kind via the Platform; This applies without limitation to pornographic, racist, violent or any otherwise illegal or immoral content, especially if it attacks the free democratic basic order or the concept of international understanding, as well as to propaganda material of anti-constitutional groups or parties and their respective replacement organizations;
3.2.7 infringe any third party’s rights, including without limitation trademarks, copyrights, patents, business and trade secrets and/or any other intellectual property rights.
3.3 You may grant others permission to access your TestObject account. You will however remain the owner of each Test created through your user account, and you will be fully responsible for such Tests and actions under these Terms of Service.
3.4 TestObject may modify or remove at its discretion any content you upload to the Platform that TestObject determines in its discretion to violate these Terms of Service.
4 Service and Support
4.1 The support services are defined in the respective pricing plans specified under http://testobject.wpengine.com/pricing . The charges are will not be invoiced separately.
4.2 Service and Support beyond the services agreed in this Terms of Service can be ordered by personal order.
4.3 All queries will be handled during our normal business hours between 9 am to 6 pm CET/CEST from Monday to Friday, excluding German public holidays.
5 TestObject’s License Grant; License Restrictions
5.1 TestObject grants you a non-exclusive, personal, worldwide, non-transferable, non-sublicensable license, limited to the term of this Agreement and subject to the payment of such fees as may be agreed upon regarding individual Products to use the software provided to you by TestObject as part of the Products except where such software is expressly provided under a different license (e.g. an Open Source License). This license is for the sole purpose of enabling you to use the TestObject Products, as permitted by these Terms of Service.
5.2 TestObject grants you a non-exclusive, personal, worldwide, royalty-free, non-transferable, non-sublicensable license, limited to the term of this Agreement, to display the TestObject trademarks, limited to the blip and name mark description, for the sole purpose of promoting or advertising that you use the Services. You will refrain from any use of TestObject’s trademarks that could damage the goodwill, reputation or interests of TestObject.
5.3 You may not attempt to disable or circumvent any security mechanisms used by the TestObject Products, or copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Products or any part thereof, unless (i) specifically authorized by TestObject, in writing (e.g., through an open source software license), (ii) permitted under Section 69e of the German Copyright Act (“Urheberrechtsgesetz”), or (iii) to the extent such acts are necessary to achieve interoperability with a third software, but only if (a) TestObject had not published details about the interfaces of the Products before and has not provided such details upon your written request, (b) only those parts of the Products are disassembled that are necessary to achieve interoperability (c) the gained information is only used to achieve interoperability, (d) the gained information is not made available in any way to any third party; and (e) the gained information is not used to develop or market a software which is similar to the Products or for any other actions that infringe TestObject’s rights.
6 License Grant from You
You agree that TestObject, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
7 Term and Termination
7.1 This Agreement is concluded for an indefinite term.
7.2 TestObject may terminate the agreement in writing (e-mail sufficient) at any time with 90 days’ notice effective at the end of a month without stating reasons. You may terminate the agreement immediately by deleting any Apps on the Platform and then deleting your user account using the appropriate functionality within the user account.
7.3 TestObject may terminate the Agreement effective immediately if the user (i) breaches any of the obligations stated in Section 3.2 of this Agreement, or (ii) does not pay any amount owing under Section 8.2 of this Agreement within 30 days of the due date, or (ii) breaches any other obligations hereunder and does not remedy such breach upon a warning setting a reasonable time period for such remedy.
7.4 TestObject may delete any data stored on the Platform by the user after any effective termination of the Agreement.
7.5 Both parties’ right of extraordinary termination for good cause remains unaffected.
8 Free Basic Use; Fees
8.1 TestObject grants basic Usage of the Products for free.
8.2 For Services provided beyond such basic use, TestObject charges fees on the basis of our pricing plans specified under https://testobject.com/pricing
8.3 Prices stated exclude the applicable German VAT rate. The payable fees are billed at the end of the billing cycle (monthly or annual, depending on the selected pricing plan). All invoices are payable immediately, and must be paid without deduction.
9 Limited Warranty (“Gewährleistung”)
9.1 Subject to this Section 9, TestObject warrants (“gewährleistet”) that the Products will perform essentially as agreed and TestObject will remedy Defects. The term “Defect” means any error and/or fault that revokes (“Substantial Defect”) or reduces the suitability for the specified purpose of use (“Minor Defect”).
9.2 TestObject assumes no warranty that the Platform and Products will work in every respect without interruption and without errors and that the functions contained therein can be executed in every conceivable combination, to the extent that any such interruption, error or restriction does not materially impair the suitability of the Platform and Products for normal use or the use envisaged by contract (“Immaterial Defect” / “unerhebliche Minderung der Tauglichkeit”).
9.3 If and to the extent a Substantial Defect occurs, and until it is remedied, usage or consumption based Services will not be charged. If and to the extent a Minor Defect occurs, and until it is remedied, charges for usage or consumption based Services will be reduced by reasonable amounts.
9.4 You are not entitled to claim damages for Defects of the Platform and Products that (i) exist at the time of conclusion of the Agreement, or (ii) that occur later but that TestObject is not responsible for.
10 Copyright Policy and Privacy
10.2 Data Usage Limitation – TestObject will use your materials (apps, documentation, bug reports, error logs) only to provide the described services and nothing else.
11 Term of Confidentiality
(a) keep the Confidential Information (Trade Secrets etc.) confidential and not disclose it to anyone and ensure that such Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information;
(b) to use the Confidential Information only to provide the services.
12 Limitation of Liability
TestObject’s liability, on whatever legal grounds, whether arising from the breach of the contract or tortuous act, is exclusively determined in accordance with the following provisions:
12.1 To the extent that TestObject provides the respective Platform a giving rise to liability free of charge, TestObject is only liable for intent and gross negligence.
12.2 In case of fee-based Services TestObject’s liability is unlimited in cases of intent and gross negligence.
12.3 In case of slight negligence, TestObject is only liable for the breach of Essential Contractual Obligations. The liability in the event of breach of such an essential obligation is limited to the typical contractual damage foreseeable upon conclusion of the contract on account of the circumstances known at that time. “Essential contractual obligations” are those obligations whose fulfillment is essential to enable the proper implementation of the contract and the achievement of its purpose and whose observation the Customer may therefore generally rely upon.
12.4 TestObject is not liable for disturbances within the network that are not caused by TestObject.
12.5 You are responsible for regularly backing up your data. TestObject is liable for loss of data in accordance with the foregoing paragraphs only to the extent that such a loss could not have been avoided by adequate backup measures by you.
12.6 The limitations of liability of this Section 12 are not applicable to any damage of life, body or health, for breaches of a guarantee (German; “Garantie”), which has to be explicitly designated as such, or for fraudulently concealed defects. Liability under the Product Liability Act (German: “Produkthaftungsgesetz”) remains unaffected.
12.7 This limitation of liability also applies to TestObject’s officers, employees, representatives and agents.
You will indemnify and hold TestObject harmless for any and all expenses and damages, including reasonable attorneys’ fees, incurred or suffered by TestObject in connection with any breach of this Agreement by you, including without limitation any damages caused by any App you upload to the Platform, and further including without limitation any damages caused by any alleged infringement of third party rights by your use of the Products.
14.1 Place of performance is TestObject’s registered office in Hennigsdorf, Germany.
14.2 The Agreement is subject to German law, excluding of the UN Convention on Contracts for the International Sale of Goods. The Parties submit to the jurisdiction of the courts at TestObject’s registered head office for all disputes arising out of or in connection with this Agreement. TestObject is also entitled to bring claims at the user’s place of performance.
14.3 Should one or more individual parts of this Agreement be or become void, invalid or unenforceable entirely or partly, the validity of the remaining Agreement shall remain unaffected. The provisions thus rendered void, or invalid or unenforceable shall be replaced by valid and enforceable provisions in a manner which ensures that the legal and economic purposes intended with the invalid provisions are achieved to the greatest extent possible. The same shall apply to any gaps in the contract.
14.4 The English language version of these Terms of Service shall control, however giving full effect to any German terms contained therein.