These Terms replace and supersede all prior versions.
Important: These Terms form a binding contract between you and TestJet when accepted by you. You accept these Terms by(1) signing an Order referencing these Terms; (2) clicking “I accept” or “I agree” (or a similar button or checkbox) to these Terms when registering for Offerings or placing an Order online, or (3) using the Offerings. These Terms are effective on the date of your acceptance. If you are accepting these Terms on behalf of an entity, you warrant and represent that you have the authority to bind that entity. If you sign up for Offerings online using an email address from your employer or another entity, then you will be deemed to represent your employer or that entity and your acceptance will bind your employer or that entity to these Terms. If you do not agree to these Terms or are not authorized to accept these Terms, you must not use the Offerings. If you accept these terms personally and not on behalf of any entity, you may not use the Offerings for or on behalf of any entity. Use of the Offerings is intended for persons eighteen (18) years of age or older. If you are between thirteen (13) and seventeen (17) years of age, you may use the Offerings under the supervision of your parent or legal guardian who has explained these Terms to you and agrees to be bound to them on your behalf. You may not use the Offerings if you are under thirteen (13) years of age.Capitalized terms used in these Terms are defined in context or in Section 1
1.1. “Additional Terms” means additional terms that apply to certain customers and Offerings set out in Section 13.
1.2. “Administrative Data” means account-related data collected during your purchase and use of the Offerings.
1.3. “Affiliate“ means any individual or business entity that controls, is controlled by, or is under common control with a party where control means ownership, directly or indirectly, of 50% or more of the voting power (or equivalent).
1.4. “Agreement” means these Terms, the Order, the Ancillary Documents and, if applicable, the Data Processing Addendum.
1.6. “Customer Content” means any content, code, or data provided by you or Users to us in connection with your use of, or resulting from your authorized use of, the Offerings.
1.7. “Customer Systems” means servers, systems, platforms, networks, applications, databases, computers, mobile devices, or other endpoints (physical or virtual) on which any On-Premises Product is installed, or from which SaaS Products are accessed, that are owned, operated, or managed by, or on behalf of, you and your Affiliates.
1.8. “Documentation“ means the then-current official user documentation provided by TestJet for the applicable Product.
1.9. “Feedback” means comments, ideas, enhancement requests, recommendations, suggestions or other feedback relating to any Offerings.
1.10. “Intellectual Property Rights” mean all registered or unregistered worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications and moral rights.
1.11. “Offerings” means the Products, Documentation and Professional Services that TestJet provides to you under the Agreement.
1.12. “On-Premises Products“ means our software products that are installed and run on Customer Systems.
1.13. “Open-Source Software” means any software components made available or distributed with the Products that are subject to open-source licenses.
1.14. “Order“ means the order document or online order on a form approved by TestJet that you submit, or a TestJet authorized reseller submits on your behalf, to TestJet that specifies the Offerings ordered and the applicable subscription term, quantities, license metrics, fees, billing and payment terms, and other terms.
1.15. “Products“ means On-Premises Products and SaaS Products.
1.16. “Professional Services” means professional services (excluding support) and any deliverables, as applicable, provided by TestJet and described in the applicable Order.
1.17. “SaaS Products“ means our hosted or cloud-based products that are provided by us on a software-as-a-service basis including any related software provided by us to access or use the product from Customer Systems.
1.18. “Sensitive Personal Information” means an individual’s financial information, sexual orientation, political orientation, race, health or medical information protected under any health data protection laws or any other type of information protected as sensitive personal information or a special category of personal information under applicable data protection or privacy laws.
1.19. “Service Data” means information about your and your Users’ use of the Offerings and performance of the Offerings that is anonymized and aggregated by TestJet.
1.20. “Support Plan” means the TestJet support plan identified in the applicable Order.
1.21. “Taxes” means any sales, value-added, goods and services, gross receipts, business and occupation, and other taxes (other than taxes on TestJet’s income or property), export and import fees, customs duties and similar charges imposed by any government or other authority.
1.22. “Term“ means the term specified in the Order during which Customer may use the Offerings, including any renewal terms.
1.23. “Third-Party Content” means third-party software, products or services that are not owned by TestJet or licensed under this Agreement that may be used or integrated with the Offerings.
1.24. “Users“ means your and your Affiliates’ employees, contractors, and service providers that are authorized to use the Offerings.
2.1. On-Premises Products. For On-Premises Products specified in an Order and provided under the Agreement, TestJet grants to you a worldwide, limited, non-exclusive, non-transferable, non-sublicensable license to install and use the On-Premises Product, in executable form, on Customer Systems and use the On-Premises Product and Documentation during the Term solely for your internal business purposes subject to the terms of the Agreement, including payment of fees.
2.2. SaaS Products. For SaaS Products specified in an Order and provided under the Agreement, TestJet grants to you a worldwide, limited, non-exclusive, non-transferable, non-sublicensable license to access and use the SaaS Product and Documentation during the Term solely for your internal business purposes subject to the terms of the Agreement, including payment of fees. If applicable, this includes the right to install and use any software, in executable form, that TestJet makes available to you to access or use the SaaS Products.
2.3. Restrictions. You and your Users must not: (1) decompile, disassemble, reverse engineer, attempt to identify source code, modify or create a derivative work of any Offerings except as expressly permitted by law (and then only with advance written notice to TestJet); (2) copy, reproduce, republish, post or transmit any Offerings (except for archival copies, solely for backup purposes, of any software that TestJet makes available to you for download); (3) sell, resell, rent, lease, license, sublicense, assign, distribute or transfer any Offerings to a third party except as authorized by TestJet under a written agreement; (4) permit anyone other than Users to access and use any Offerings
2.4. Limits on Use. Your use of the Products is limited to the edition, license type, quantities, and metrics stated in the Order. You are responsible for all actions taken by Users or through access credentials provided by us for the Products (“User IDs”). You will notify TestJet immediately if you become aware of any unauthorized use of the Products or a User ID. TestJet may restrict access to features not licensed, even if made accessible at the time of delivery.
2.5. Support. TestJet will provide support for the Products during the Term according to the applicable Support Plan. TestJet will not be obligated to provide support for issues arising from unauthorized use of the Products, or use of the Products not in accordance with the Documentation, or services for which TestJet charges separate fees.
2.6. Professional Services. You may purchase Professional Services under the Agreement. Professional Services are described in the applicable Order and are subject to the Professional Services Terms described in Section 13.3.
2.7. Limited Use Licenses. At its sole discretion, TestJet may provide certain Products to you for free or under other limited-use licenses (collectively, “Limited Use Licenses”). Your use of a Product under a Limited Use License is: (1) subject to these Terms and any additional terms we specify when we provide the Limited Use License to you; and (2) restricted to the use for which it is provided during the Term. Limited Use Licenses for trials are restricted to use for internal evaluation. Limited Use Licenses for alpha, beta or other pre-release versions of Products or features are restricted to use for pre-release testing. You understand that Products and features provided under Limited Use Licenses for pre-release testing are still under development, may be inoperable or incomplete, and may contain more errors and bugs than generally available versions of Products. All information regarding the features or performance of Products provided under a Limited Use License is our Confidential Information. We may terminate a Limited Use License at any time for any reason at our sole discretion. Use of multiple free accounts to avoid incurring fees may result in the termination of your account(s) or conversion to a paid subscription. Limited Use Licenses are intended for use in a non-production environment. Any use by you of Products under a Limited Use License, including any use in a production environment, is at your own risk. To the maximum extent permitted by law, Products under a Limited Use License are provided “AS IS” without support, warranty or indemnification of any kind, express or implied. Notwithstanding anything else in these Terms, TestJet’s maximum aggregate liability to you for Limited Use Licenses will not exceed USD$100.
3.1. TestJet Ownership. TestJet, its Affiliates and licensors retain all right, title and interest to the Offerings (including derivative works) and all related Intellectual Property Rights. The Offerings are licensed, not sold. The use of terms such as “purchase” or “sale” will not be interpreted to imply a transfer of ownership. Your rights to the Offerings are limited to the rights expressly granted in these Terms.
3.2. Your Ownership. You, your Affiliates and licensors retain all right, title and interest to Customer Content and all related Intellectual Property Rights. You grant to TestJet, its Affiliates and its service providers a worldwide, limited license to use and process Customer Content during the Term solely to provide the Offerings and as expressly permitted under the Agreement. Our rights to Customer Content are limited to the rights expressly granted in these Terms.
3.3. Feedback. If you provide Feedback to TestJet, you agree that TestJet may use the Feedback and incorporate the Feedback into Offerings without restriction, compensation or other obligation to you. Open-Source Software. A list of Open-Source Software made available or distributed with the Products is available on the TestJet Support Portal or may be provided by TestJet upon written request. Open-Source Software is licensed to you under its own license terms and those terms apply to your use of the Open-Source Software. In the event of a conflict, the Open-Source Software license terms supersede these Terms solely with respect to that Open-Source Software.
3.4. Third-Party Content. Third-Party Content is licensed to you under its own terms and those terms apply to your use of the Third-Party Content. TestJet does not control or review Third-Party Content. You are responsible for ensuring that Third-Party Content is appropriate for your intended use and that you have the rights necessary to use the Third-Party Content.
4.1. Orders. You may purchase Offerings directly from TestJet, its Affiliates, or through a TestJet authorized reseller. The Offerings will be made available to you on your acceptance of an Order. An Order is accepted by you when you sign the Order or when you submit an online Order. The parties agree that the Customer’s signature only is sufficient to create a binding contract on any unaltered order form provided by TestJet. All Orders are non-cancelable and non-refundable except as expressly provided in these Terms.
4.2. Reseller Orders. If you purchase through a TestJet authorized reseller, Sections 4.4 (Fees and Payment) and 4.5 (Taxes) will not apply to that purchase and the reseller will invoice you and you will pay the reseller instead of TestJet. If you purchase through a TestJet authorized reseller, you agree that your order details will be as stated on the Order submitted by the reseller on your behalf. You also acknowledge and agree that the reseller is not authorized to make any changes to the Agreement or make any warranties, representations, promises, or commitments on behalf of TestJet related to the Offerings.
4.3. Affiliate Orders. Your Order will be placed with the TestJet Affiliate indicated on the Order. You may authorize your Affiliates to submit Orders under these Terms. You remain responsible for your Affiliates’ compliance with the Agreement.
4.4. Fees and Payment. TestJet will invoice you for fees stated on the Order after accepting your Order. Fees will be due and payable thirty (30) days after the invoice date unless the Order states a different payment due date. The fees stated in an Order are for the current versions of the Offerings and you acknowledge that you are not relying on the future availability of any feature or functionality of the Offerings in consideration for the fees. If you fail to pay any amount when due under the Agreement, TestJet may, at its sole discretion, suspend the Offerings until you pay all outstanding amounts or terminate the applicable Order or the Agreement. If TestJet accepts your credit card for payment, you agree that TestJet may bill your credit card or other payment methods for renewals or other amounts due and payable by you under the Agreement until you provide written notice to TestJet to stop.
4.5. Taxes. All fees are exclusive of Taxes. You will pay or reimburse TestJet for Taxes related to transactions under the Agreement and TestJet will remit Taxes to the relevant taxing authorities. If you are required by the applicable law to withhold and remit any amounts for payments due under the Agreement, you will inform us of the withholding amount with the Order and we will invoice you for the gross-up amount so that TestJet receives the fees due in full. TestJet can rely on the name and address you provide to TestJet as being the place of supply for Taxes. If you are Tax exempt, you will provide us with a copy of the exemption certificates from the relevant taxing authorities with the Order. Upon a reasonable request, we will provide you documentation of payment of Taxes to the relevant taxing authorities.
4.6. Upgrades/Downgrades. You may upgrade your account at any time. After an upgrade, we will invoice you for the additional fees due for the remainder of the applicable Term, and future auto-renewals will reflect the upgrade. You may not downgrade your account during the Term
5.1. Product Warranty. TestJet warrants that the Products will materially conform to the applicable Documentation during the Term. For On-Premises Products licensed on a perpetual basis, the warranty will apply only for a period of twelve (12) months from delivery of the On-Premises Products. This warranty applies only to currently supported versions of the Product licensed to you that are used in unmodified form in accordance with the Documentation and the Agreement. If you promptly notify TestJet of a reproducible error that TestJet determines is a breach of this warranty, TestJet will use commercially reasonable efforts to correct the error. If TestJet determines that it is not commercially feasible to correct the error, TestJet may terminate the Order for the applicable Product and refund to you the amount that TestJet received for the unused portion of the Term after the date you notified TestJet of the error. The remedies provided in this Section are your sole and exclusive remedies for a breach of the product warranty provided in this Section.
5.2. Professional Services Warranty. TestJet warrants that it will perform Professional Services under the Agreement in a professional and workmanlike manner. If you notify TestJet of an issue that TestJet determines is a breach of this warranty within sixty (60) days of the completion date, TestJet will use commercially reasonable efforts to reperform the services to comply with the warranty. If TestJet determines that it is not commercially feasible to reperform the services, TestJet may terminate the Order for the applicable Professional Services and refund to you the amount that TestJet received for the portion of the Professional Services that failed to conform to the warranty. The remedies provided in this Section are your sole and exclusive remedies for a breach of the professional services warranty provided in this Section.
5.3. Warranty Disclaimer. The express warranties set forth in this Section 5 (Warranties) are in lieu of all other warranties. TestJet makes no warranties with respect to any Open-Source Software or Third-Party Content. To the maximum extent permitted by law, TestJet disclaims all other warranties, whether express, implied or statutory (including any implied warranties of merchantability, fitness for a particular purpose, title, or noninfringement), and any warranties arising from the usage of trade, course of dealing or course of performance. TestJet does not warrant that the Offerings will meet your requirements or that they will be accurate or operate without interruption or error. You acknowledge and agree that you have not relied on any promise, warranty, or representation not expressly provided in this Agreement.
6.1. Customer Indemnification. You agree to indemnify and defend TestJet, its Affiliates and their respective officers, directors and employees against any unaffiliated third-party suit or proceeding alleging that any Customer Content or our use of Customer Content in compliance with the Agreement infringes any patent, trademark or copyright, or misappropriates a trade secret, of that third party or arising out of your use of the Offerings in breach of the Agreement (“Customer Indemnified Claim”). You will indemnify TestJet from the damages finally awarded against TestJet to that third party by a court of competent jurisdiction or agreed to in the settlement. Your obligations under this Section 6.1 apply only if TestJet: (1) promptly notifies you of the Customer Indemnified Claim in writing; (2) allows you sole control over the defense of the claim and any settlement negotiations except that you may not agree to any settlement that requires TestJet or its other customers to admit liability or subjects TestJet or its other customers to ongoing obligations without TestJet’s express prior written consent; and (3) reasonably cooperates in response to your requests for assistance. This Section 6.1 sets forth TestJet’s sole and exclusive remedy and your entire liability for any Customer Indemnified Claim.
7.1. Limitation on Damages. Neither party nor its Affiliates are liable for any lost profits or business opportunities, loss of use, loss of data, business interruption, or any indirect, punitive, special, incidental, or consequential damages under any theory of liability. This limitation applies regardless of whether TestJet or you have been advised of the possibility of those damages and regardless of whether any remedy in this Agreement fails of its essential purpose.
7.2. Cap on Monetary Liability. The maximum aggregate liability of either party and its Affiliates for claims related to the Agreement will not exceed the fees paid or payable to TestJet for the Offering that is subject of the claim in the 12 months preceding the event giving rise to the claim.
7.3. Exclusions. The limitations in Section 7 (Limitations of Liability) will not apply to: (1) either party’s obligations in Section 6 (Indemnification); (2) either party’s violation of the other party’s Intellectual Property Rights; (3) your payment obligations under Section 4.4 (Fees and Payment); (4) your violation of Section 2.3 (Restrictions); or (5) any liability that cannot be excluded under applicable law.
8.1. Confidential Information. “Confidential Information” means non-public information provided by one party (“Discloser”) to the other party (“Recipient”) in connection with the Agreement that is labeled confidential or proprietary or that a reasonable businessperson would consider to be proprietary or confidential due to its nature. TestJet’s Confidential Information includes information related to the Offerings, pricing, and product roadmaps. Your Confidential Information includes Customer Content. Confidential Information does not include any information that Recipient can show: (1) was rightfully known to Recipient without any obligation of confidentiality at the time of disclosure; (2) was disclosed to Recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (3) was generally available to the public at the time of disclosure through no fault of Recipient; or (4) was independently developed by Recipient without use of Discloser’s Confidential Information.
8.2. Obligations; Permitted Use and Disclosure. The recipient will protect the Discloser’s Confidential Information in the same manner as it protects its own Confidential Information of a similar nature or value, and always with at least reasonable care. The recipient may use the Confidential Information of Discloser solely to exercise its rights and perform its obligations under the Agreement. The recipient may disclose Confidential Information only to its and its Affiliates’ officers, directors, employees, service providers, contractors, advisors, or representatives (“Representatives”) who have a reasonable need to know the Confidential Information to perform under the Agreement and who are bound by a similar duty of confidentiality. The recipient is responsible for its Representatives’ compliance with this Section 8. The recipient also may disclose Confidential Information to the extent required by law or regulation, in which case Recipient will notify Discloser as soon as practicable if permitted by law or regulation. At Discloser’s request and expense, Recipient will take reasonable steps to contest and limit the scope of any required disclosure. Recipient’s obligation to protect Confidential Information of Discloser applies during the Term and for three (3) years after the end of the Term except with respect to Confidential Information that constitutes a trade secret, which will remain subject to the confidentiality obligations for as long as it remains subject to trade secret protection under applicable law.
10.1. Term. The Agreement will remain in effect for the Term of all Orders accepted under the Agreement unless earlier terminatedunder this Section.
10.2. Renewals. The Term will automatically renew for successive twelve-month terms at the same account level and quantities of the expiring Term unless otherwise stated in the Order or either party sends notice of non-renewal or downgrade at least thirty (30) days before the end of the current Term. At least sixty (60) days before the end of the current Term, TestJet will send a renewal notice to you or your reseller, as applicable, regarding the fees and any additional terms that apply in the renewal Term, which will become effective at the start of the renewal Term unless you or your reseller timely notify us of your intent not to renew.
10.3. Suspension. TestJet may immediately suspend or terminate your access to the Offerings if: (1) you have not paid past-due fees; (2) TestJet reasonably believes that you have materially breached the Agreement, or (3) TestJet reasonably determines your use is disrupting or interfering with the security, integrity or availability of any Offerings or any third parties use of any Offerings.
10.4. Termination at the end of Term. Either party may terminate an Order effective at the end of the current Term by providing the other party at least thirty (30) days’ written notice before the end of the current Term.
10.5. Termination for Breach. If the other party materially breaches the Agreement and does not cure the breach within thirty (30) days of receiving written notice describing the breach from the other party, the non-breaching party may terminate the affected Orders or the Agreement immediately by written notice. Termination of the Agreement under this Section will also terminate all Orders then in effect. If you terminate under this Section for TestJet’s uncured breach, then TestJet will refund the amount that TestJet received for the unused portion of the Term for the terminated Offering. Each party agrees that disputes related to this Agreement will be finally settled under the Rules of Arbitration of the International
10.6. Termination for Insolvency. Either party may terminate this Agreement effective immediately by written notice if the other party becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver, or similar authority, or to any bankruptcy or insolvency proceeding. Termination of the Agreement under this Section will also terminate all Orders then in effect.
10.7. Effect of Expiration or Termination. Upon termination or expiration of an Order, you will immediately stop using and TestJet will stop providing the applicable Offerings. Any unpaid fees will become immediately due and payable on termination. You will not be entitled to a refund of any pre-paid fees except as provided under Sections 5.1, 5.2, 6.1, 10.5, and 11.2.
10.8. Survival. The following Sections will survive termination or expiration of this Agreement: 2.3 (Restrictions); 2.4 (Limits on Use); 3 (Intellectual Property); 4.4 (Fees and Payment); 5.3 (Warranty Disclaimer); 6 (Indemnification); 7 (Limitations of Liability); 8 (Confidentiality); 9 (Data Privacy and Information Security); 10.7 (Effect of Expiration or Termination); 10.8 (Survival); and 12 (General).
11.1. Changes to Offerings. Our Offerings are continually evolving. We may update or modify the Offerings and the Ancillary Documents during the Term to reflect changes in laws, technology, industry practices, our business or other market factors. The Ancillary Documents applicable at any time are the current version. TestJet may use third-party service providers to deliver the Offerings and may change or replace third-party service providers from time to time at its sole discretion. Use of third parties and any changes to Offerings will not materially reduce the level of performance, security, or availability of the Offerings during the Term. If we decide to discontinue any Products, it will be according to our product lifecycle policies.
11.2. Changes to Terms. We may modify these Terms (including any Additional Terms) with notice to you as provided in Section 12.6 or by posting the modified Terms on our website. Any changes to these Terms will be effective on notice for Limited Use Licenses and effective at the start of the next renewal Term for paid Offerings unless a different effective date is stated on the notice. Your continued use of the Offerings after the effectiveness of the change confirms your acceptance. If the change is effective during the current Term, is not required to comply with law, and materially and adversely impacts your use of the Offerings, then you may object to the change by providing written notice to us that describes the material impact of the change to you within thirty (30) days of the date of our notice of the change. Following notice of your objection, at our option, we may: (1) delay the effective date of the change to you until after the end of the current Term; (2) use commercially reasonable efforts to remediate the impact of the change to you; or (3) terminate the affected Orders and refund to you any fees that you have pre-paid for the unused portion of the Term.
12.1. Governing Law and Forum. Unless otherwise specified in the Order, the Agreement is governed by the laws of the State of Texas without regard to principles of conflicts of law, and any dispute arising out of the Agreement will be exclusively resolved in the State or Federal courts located in Texas. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
12.2 Each party agrees that disputes related to this Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed under the Rules. The arbitration will be final and binding and the judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The place of arbitration will be where the Tricentis entity specified in the Order is located and the arbitration will be conducted in English. Chamber of Commerce by one or more arbitrators appointed under the Rules. The arbitration will be final and binding and the judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The place of arbitration will be where the TestJet entity specified in the Order is located and the arbitration will be conducted in English.
12.3. Injunctive Relief. Each party acknowledges and agrees that a breach of its obligations with respect to the other party’s Confidential Information and Intellectual Property Rights may cause irreparable harm to the other party that could not be remedied by payment of damages alone and that the other party may seek injunctive relief to prevent the breach in any appropriate jurisdiction.
12.4. Assignment. Neither party may assign its rights or obligations under the Agreement or any Order without the prior written consent of the other party except to an Affiliate or to a successor that has acquired substantially all the business relating to the Agreement. Neither party will unreasonably withhold consent to assignment. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any purported assignment in violation of this Section 12.4 is void.
12.5. Export Compliance. You agree to comply with applicable anti-corruption and export control laws in your use of the Offerings. You represent and warrant that you are not, are not acting on behalf of, and will not export or re-export any part of the Offerings to: (1) any person who is a citizen, national, resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; (2) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department Denied Persons List or Entity List; or (3) any country to which the United States government requires an export license or other governmental approval without first obtaining the license or approval. You are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, your United States export privileges.
12.6. Notices. All notices will be in writing. The parties agree that electronic communications will satisfy applicable legal notice requirements, including that the notice is in writing. Notice will be deemed given on the next business day after the notice is sent. TestJet will send notices to you at the email address indicated on the Order or update through your customer account. It is your responsibility to keep your email address for notices valid and current to receive notices. You will send termination and non-renewal notices to TestJet at email@example.com and other notices to TestJet at firstname.lastname@example.org.
12.7. Records. You agree to make available to TestJet on request all information and records reasonably necessary to demonstrate that your use of the Offerings complies with the Agreement. For SaaS Products, you agree that TestJet may monitor your use of the SaaS Products for compliance with applicable limits on use. If TestJet determines your use exceeds applicable limits, TestJet will invoice you for fees related to the excess use.