Terms of Service
These Terms of Service (the “Agreement” or these “Terms”) apply to your (“you” or “Customer”) access to use of the websites, mobile applications and other online products and Services provided by TestFit Inc., a Delaware corporation with offices located in Dallas, TX (“TestFit” “us” or “we”, and collectively with TestFit, the “Parties”). By clicking [“Accept”] or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
1. Services
1.1 Access and Use. Subject to Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, TestFit hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14.8) right to access and use the Services, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
1.2 Additional Features. TestFit makes a limited version of the Services available at no charge for a trial period and to certain Customers designated as Urban Planner or Educational Customers. In addition to those Services, Customer may purchase a subscription to access additional features after the trial period through an Order made through TestFit’s website or a separate agreement entered into by the Parties. If Customer places an Order for such additional Services, TestFit shall provide to Customer the Access Credentials on or promptly following the effective date of the applicable Order. If Customer’s Order limits the total number of Authorized Users, the total number of Authorized Users will not exceed the number set forth in such Order unless expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable pursuant to such Order.
1.3 On-Premises Software.
(a) The Services may include certain On-Premises Software components. Subject to Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, TestFit hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.8) license to run, access and use such On-Premises Software components during the Term, provided that (i) each such computer is owned or leased and controlled by you, and (ii) the On-Premises Software components is properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for your internal business purposes and internal use. For the avoidance of doubt, all Customer obligations related to the Services shall apply to such On-Premises Software components, including those set forth in Section 2.1.
(b) TestFit will exercise commercially reasonable efforts in its discretion to assist Customer in troubleshooting problems with the On-Premises Software to the extent such problems are caused by (i) TestFit or (b) bugs or other errors in the On-Premises Software that adversely affect all TestFit customers.
(c) The On-Premises Software may contain technological copy protection or other security features designed to prevent unauthorized use of the On-Premises Software, including features to protect against any use of the On-Premises Software that is prohibited hereunder. You shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
(d) Upon TestFit’s reasonable written request, you shall conduct a review of you and your Authorized Users use of the On-Premises Software and certify to TestFit in a written instrument signed by your authorized representative that you are in full compliance with this Agreement, or, if you discover any noncompliance: (i) you shall immediately remedy such noncompliance and provide TestFit with written notice thereof and provide TestFit with all access and assistance as TestFit reasonably requests to further evaluate and remedy such noncompliance; (ii) If your use of the On-Premises Software exceeds the number of copies or Authorized Users permitted, TestFit shall have the remedies set forth below.
(e) During the Term, TestFit may, in TestFit’s sole discretion, audit your use of the On-Premises Software to ensure your compliance with this Agreement. TestFit also may, in its sole discretion, audit your systems within six (6) months after the end of the Term to ensure you have ceased use of the On-Premises Software and removed all copies of the On-Premises Software from such systems as required hereunder. You shall fully cooperate with TestFit’s personnel conducting such audits and provide all reasonable access requested by TestFit to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. TestFit shall exercise commercially reasonable efforts to minimize any disruption to your business operations caused by such audits.
(f) If any of the measures taken or implemented under this Section results in a determination by TestFit that your use of the On-Premises Software exceeds or exceeded the use permitted by this Agreement, then TestFit may terminate this Agreement for your material breach pursuant to Section 13.
1.4 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
(a) TestFit has and will retain sole control over the operation, provision, maintenance, and management of the TestFit Materials (other than On-Premises Software); and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the TestFit Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or TestFit; (ii) results obtained from any use of the Services or TestFit Materials; and (iii) conclusions, decisions, or actions based on such use.
1.5 Changes. TestFit reserves the right, in its sole discretion, to make any changes to the TestFit Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of TestFit’s services to its customers, (ii) the competitive strength of or market for TestFit’s services, or (iii) the Services’ cost efficiency or performance; or (b) comply with applicable Law. Such changes may include, without limitation, charging fees for Services or discontinuing Services.
1.6 Services Suspension or Termination. TestFit may suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the TestFit Materials, without incurring any resulting obligation or liability, if:
(a) TestFit receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires TestFit to do so; or
(b) TestFit believes that (i) Customer or any Authorized User or Person has (1) failed to comply with any term or condition of this Agreement, (2) accessed or used any TestFit Materials beyond the scope of the rights granted under this Agreement or (3) accessed or used any TestFit Materials for any purpose not expressly authorized under this Agreement or in any manner that does not comply with the instructions or requirements set forth in the Documentation, or (ii) Customer or any Authorized User is, has been or is likely to be involved in any fraudulent, misleading, tortious or unlawful activities.
This Section 1.6 does not limit any of TestFit’s other rights or remedies, whether arising at law, in equity or under this Agreement.
1.7 Custom Development. This Agreement is not intended to, and does not, govern any custom development or other custom professional services.
1.8 Reservation of Rights. Except as otherwise expressly set forth herein, this Agreement does not grant any right, title or interest in or to (including any Intellectual Property Rights in or relating to) the Services, TestFit Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the TestFit Materials and the Third-Party Materials are and will remain with TestFit and the respective rights holders in the Third-Party Materials.
2. Use Restrictions; Service Usage and Data Storage
2.1 Use Restrictions. Customer shall not, and shall not permit any Authorized User or other Person to, access or use any TestFit Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party terms and conditions. Without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of any TestFit Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any TestFit Materials to any Person (including any subcontractor, independent contractor, Affiliate or service provider), including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) combine the TestFit Materials or any part thereof with, or incorporate the TestFit Materials or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of any TestFit Materials, in whole or in part;
(e) bypass or breach any security device or protection used by any TestFit Materials;
(f) access or use any TestFit Materials other than by an Authorized User through the use of his or her own then valid Access Credentials or allow sharing or use of Access Credentials with any Person other than the Authorized User with which such Access Credential is associated;
(g) input, upload, transmit, or otherwise provide to or through any TestFit Materials, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(h) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner any TestFit Materials or TestFit provision of services to any third party, in whole or in part;
(i) remove, delete, alter or obscure any trademarks, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any TestFit Materials, including any copy thereof;
(j) access or use any TestFit Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law;
(k) access or use any TestFit Materials for any purpose (i) of competitive analysis or the development, provision or use of a competing service or product or (ii) that is to TestFit’s detriment or commercial disadvantage; or
(l) attempt to probe, scan or test the vulnerability of the TestFit Materials or circumvent any access control or digital rights management measures or technology thereof
(m) access or use any TestFit Materials in, or in association with, the design, construction, maintenance or operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications or any other use or application in which the use or failure of the TestFit Materials could lead to personal injury or severe physical or property damage.
You shall notify TestFit immediately if you learn of any other Person doing any of the activities listed in subsections (a)-(m) above using the email address security@testfit.io.
2.2 Service Usage and Data Storage. This Section 2.2 shall apply only to Customers who access the Services on a paid-basis pursuant to an applicable Order. If applicable, your Order may set forth Fees for designated levels of usage and data storage (each a “Service Allocation”), beginning with the Fees payable by Customer for the levels of usage and data storage in effect as of the beginning of the applicable Order Term. TestFit will use commercially reasonable efforts to notify Customer in writing if Customer has reached ninety percent (90%) of its then-current Service Allocation. In such an event, Customer may increase its Service Allocation and corresponding Fee obligations in accordance with the applicable Order. Notwithstanding anything to the contrary, if Customer exceeds its Service Allocation, Customer shall pay to TestFit the applicable excess usage and/or storage Fees (a) set forth in the applicable Order or (b) in accordance with TestFit’s then-current rates for excess usage or storage if no excess usage or storage Fees are set forth in such Order. If Customer has a credit or debit card on file with TestFit, Customer acknowledges and agrees that TestFit may automatically charge such Customer card for such Fees as they are incurred. Customer further acknowledges and agrees that:
(a) exceeding its then-current Service Allocation may result in degradation of Services for Customer or other TestFit customers and will constitute a material breach of this Agreement by Customer;
(b) TestFit has no obligation to permit Customer to exceed its then current Service Allocation and may limit Customer’s use of the Services to its then current Service Allocation; and
(c) Customer is not entitled to any Service Credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Services fail to meet the Availability Requirement during such period.
3. Customer Obligations
3.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as TestFit may reasonably request to enable TestFit to exercise its rights and perform its obligations under this Agreement.
3.2 Customer Failures. TestFit is not responsible for any delay or failure of performance that is caused, in whole or in part, by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
3.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the TestFit Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify TestFit of any such actual or threatened activity using security@testfit.io.
4. Service Levels; Service Credits
4.1 Service Levels. This Section 4 shall apply only to Customers who access the Services on a paid-basis pursuant to an applicable Order. If applicable, subject to the terms and conditions of your Order, TestFit will use commercially reasonable efforts to make the Services Available at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding periods of time during which the Services are not Available as a result of any Exceptions (the “Availability Requirement”). The Services will not be considered un-Available, nor any Service Level Failure be deemed to occur, in connection with any failure to meet the Availability Requirement that is due, in whole or in part, to any Exception(s).
4.2 Service Level Failures and Remedies. Customer shall notify TestFit of any alleged Service Level Failure within ten (10) days of the end of the applicable Service Period during which Customer alleges the Service Level Failure occurred. Upon receipt of such notice from Customer, TestFit will investigate to confirm whether a Service Level Failure occurred, as determined by TestFit in its sole discretion. If TestFit confirms such Service Level Failure occurred, TestFit will issue a credit to Customer in the amount of ten percent (10%) of the applicable Fees due for the Service Period during which such Service Level Failure occurred (each a “Service Credit”). Any Service Credit payable to Customer under this Agreement will be applied to Customer’s subsequent invoice; Service Credits are not payable as cash refunds. This 4.2 sets forth TestFit’s sole and responsibilities, and Customer’s sole and exclusive remedy, for any Service Level Failure.
4.3 Support. The Services include TestFit’s standard customer support services (“Support Services”), which will be provided in accordance with TestFit’s then-current support policies. Subject to the foregoing, TestFit will exercise commercially reasonable efforts to make Support Services resources available to Customer via email Monday through Friday from 9:00AM to 5:00PM CST.
5. Data Backup
The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. TESTFIT HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TESTFIT HAS NO OBLIGATION TO RETAIN ANY CUSTOMER DATA FOLLOWING TERMINATION OF THIS AGREEMENT; TESTFIT MAY DELETE ANY OR ALL CUSTOMER DATA IN ITS POSSESSION OR CONTROL UPON TERMINATION OF THIS AGREEMENT. Subject to the foregoing, TestFit’s Cloud Backup Policy, as may be amended from time to time, is set forth at https://testfit.io/cloud-backup-policy/.
6. Security
6.1 Information Security. TestFit will employ physical, administrative and technical controls, screening and security procedures and other security measures in accordance with TestFit’s Information Security Policy set forth at https://testfit.io/infosec-policy/, as amended from time to time.
6.2 Customer Control and Responsibility. Except as otherwise expressly set forth in this Agreement, Customer is solely responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the TestFit Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
6.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
7. Fees and Payment
7.1 Fees. This Section 7 shall apply only to Customers who access the Services on a paid-basis pursuant to an applicable Order. Customer shall pay TestFit the fees set forth in the applicable Order (“Fees”) in accordance with this 7 and any additional terms and conditions set forth in such Order. In the event of a conflict between the applicable Order and this Section, the applicable Order shall prevail.
7.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on TestFit’s income.
7.3 Payment. Customer shall pay all Fees within thirty (30) days of the date of the applicable invoice therefor. All Fees are non-refundable except where expressly set forth otherwise in this Agreement or the applicable Order. Customer shall make all payments hereunder in US dollars by ACH, direct deposit, wire transfer, credit card, or other method reasonably directed by TestFit. If Customer pays with credit card or debit card: (a) TestFit may pass through to Customer any applicable card processing or similar fees incurred by TestFit and (b) Customer shall be liable for any chargebacks or similar issues TestFit encounters in connection with processing such transaction. Customer shall make payments to the address or account specified in the applicable invoice or such other address or account as TestFit may specify in writing from time to time.
7.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) TestFit may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse TestFit for all costs incurred by TestFit or its agents in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and
(c) TestFit may suspend Customer’s access to the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.5 No Deductions or Setoffs. All amounts payable to TestFit under this Agreement shall be paid by Customer to TestFit in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
7.6 Fee Changes. TestFit may increase or otherwise modify the Fees payable by Customer pursuant to the applicable Order, including by modifying the rate(s) or model(s) used to calculate such Fees, upon or in connection with any renewal of the Order Term (as defined below). TestFit will notify Customer at least forty-five (45) days prior to the date on which such Fee modification will first take effect. Customer may opt out of such Fee modification by providing written notice to TestFit at least thirty (30) days prior to the date the modified Fees are to take effect; provided, however, that TestFit shall have the right to immediately terminate such Order without further obligation or liability upon written notice to Customer following such opt out. In the event Customer does not notify TestFit of Customer’s opt out prior to the effective date of the modified Fees stated in TestFit’s notice thereof, the Fees set forth in such Order will be deemed amended in accordance with such notice.
8. Confidentiality
8.1 Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means any non-public information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers or pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all TestFit Materials are the Confidential Information of TestFit, and the terms of this Agreement are the Confidential Information of each of the Parties.
8.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
8.3 Protection. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
8.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
9. Intellectual Property Rights
9.1 TestFit Materials. All right, title and interest in and to the TestFit Materials and Usage Data, including all Intellectual Property Rights therein, are and will remain with TestFit. With respect to Third-Party Materials, the applicable third-party providers own all right, title and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license or authorization with respect to any of the TestFit Materials except as expressly set forth in Section 1 or the applicable third-party license, in each case subject to Section 2. All other rights in and to the TestFit Materials are expressly reserved by TestFit. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to TestFit an assignment of all right, title and interest in and to the Usage Data, including all Intellectual Property Rights relating thereto.
9.2 Customer Data. As between Customer and TestFit, and subject to Section 9.4, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto.
9.3 Feedback. If Customer or any of its employees or agents sends or transmits any communications or materials to TestFit suggesting or requesting any changes to any TestFit Materials, including new features or functionality thereof (collectively, “Feedback”), TestFit is free to use such Feedback irrespective of any other obligation or limitation between the Parties. Customer hereby assigns to TestFit on Customer’s behalf, and on behalf of its employees and agents, all right, title and interest, including all Intellectual Property Rights, in and to such Feedback.
9.4 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to exercise TestFit’s rights or perform TestFit’s obligations hereunder.
9.5 Third-Party Materials. The TestFit Materials may rely on or link to Third-Party Materials such as Google Maps, Mapquest or Mapzen. Accordingly, you are responsible for providing an Internet connection through which the TestFit Materials may access Third-Party Materials, and for maintaining suitable firewall and other software and system security measures. YOU ARE SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LICENSES AND TERMS OF USE FOR SUCH THIRD-PARTY MATERIALS. YOUR USE OF THE TESTFIT MATERIALS DEPENDS ENTIRELY ON THE QUALITY, AVAILABILITY, EXISTENCE, FEATURES OR UPTIME OF THE THIRD-PARTY MATERIALS. TESTFIT DOES NOT CONTROL AND DOES NOT GUARANTEE THE AVAILABILITY OF ANY THIRD-PARTY MATERIALS. THIRD-PARTY MATERIALS MAY BE DISCONTINUED, DEPRECATED OR MODIFIED AT ANY TIME AND WITHOUT NOTICE TO YOU OR TO TESTFIT. THIRD-PARTY MATERIALS MAY NOT BE SECURE, MAY TRACK YOU AND YOUR USE OF THE THIRD-PARTY MATERIALS, MAY SELL DATA RELATED TO YOU TO OTHERS, MAY BE SUBJECT TO PHISHING ATTACKS AND OTHER IDENTITY RISKS, MAY INCLUDE HIDDEN FEES OR ACTIVITY, AND MAY BE SUBJECT TO CHANGING TERMS OF USE AND PRIVACY POLICIES. IT IS YOUR SOLE RESPONSIBILITY TO UNDERSTAND AND PROTECT YOURSELF AGAINST RISKS ASSOCIATED WITH USING THIRD-PARTY MATERIALS. TESTFIT DISCLAIMS ALL LIABILITY ARISING FROM YOUR USE OF THIRD-PARTY MATERIALS, AND FOR DATA CREATED, HOSTED, MODIFIED, DISPLAYED, COPIED, BROADCAST, PERFORMED OR DELIVERED BY YOU.
9.6 Open Source Materials. The TestFit Materials may use or link to open source materials, and your use is subject to the terms and conditions of the specific license under which the open source material is distributed. You agree to be bound by and comply with any and all such licenses. Title to the open source materials remains with the applicable licensor(s). Open source materials contained in the TestFit Materials may be licensed under various open source licenses, including without limitation zlib, Apache, Freeglut, GLEW, MIT, MIT/X, Simplified BSD, New BSD, libpng, and unlicense. All such open source materials are provided subject to the terms of their applicable licenses on an “as-is” basis.
10. Representations and Warranties
10.1 Mutual. Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.2 Customer. Customer represents, warrants and covenants to TestFit that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by TestFit and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any rights of any third party or violate any applicable Law.
10.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL TESTFIT MATERIALS ARE PROVIDED “AS IS.” TESTFIT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TESTFIT MAKES NO WARRANTY OF ANY KIND THAT ANY TESTFIT MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY RELATED TO ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11. Indemnification
11.1 TestFit. TestFit shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an Affiliate of Customer) that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party’s registered United States Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the TestFit Materials in combination with any hardware, system, software, network or other materials or service not provided by TestFit;
(c) modification of the TestFit Materials other than modifications made by TestFit;
(d) Customer’s failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of TestFit; or
(e) any act, omission or other matter described in Section 11.2, whether or not the same results in any Action against or Losses by any TestFit Indemnitee.
11.2 Customer. Customer shall indemnify, defend and hold harmless TestFit and its Subcontractors and Affiliates, and each of their respective officers, directors, employees, agents, successors and assigns (each, a “TestFit Indemnitee”) from and against any and all Losses incurred by such TestFit Indemnitee resulting from any Action by a third party (other than an Affiliate of a TestFit Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of TestFit in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including TestFit’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by TestFit;
(c) facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;
(d) Customer’s use of a Third-Party Material or Customer’s violation of any license, terms of use or privacy policy governing or relating to Third-Party Materials, or
(e) negligence or more culpable act or omission (including recklessness, fraud or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
11.3 Procedures. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or 11.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee (such acceptance not to be unreasonably withheld) to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may reasonably deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
11.4 Mitigation. If any of the TestFit Materials are, or in TestFit’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or TestFit Materials is enjoined or threatened to be enjoined, TestFit may, at its sole option:
(a) obtain the right for Customer to continue to use the TestFit Materials in accordance with this Agreement;
(b) modify or replace the TestFit Materials, in whole or in part, to make the TestFit Materials (as so modified or replaced) non-infringing, while providing substantially similar features and functionality, in which case such modifications or replacements will constitute TestFit Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the TestFit Materials.
11.5 Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND TESTFIT’S SOLE LIABILITY AND OBLIGATIONS FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE TESTFIT MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. Limitations of Liability
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL TESTFIT OR ANY OF ITSLICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE FOR ANY: (A) LOSS OFPRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B)IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES,OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TOSECTION 4.2; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OFDATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OFGOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH TESTFIT ORCUSTOMER WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCHLOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING ANY FAILUREOF ANY REMEDY’S ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF TESTFIT AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A) FIVE-THOUSAND DOLLARS (US$5,000) OR (B) THE TOTAL AMOUNT PAID BY CUSTOMER TO TESTFIT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Term; Termination
13.1 Term. This Agreement commences on the date you accept this Agreement and will continue for the duration of the agreed-upon term, unless earlier terminated as set forth in this Agreement (the “Term”).
13.2 Order Term. The term of each Order shall be as set forth in such Order (“Order Term”). Notwithstanding anything to the contrary, this Agreement shall survive for as long as there are any active Orders between the Parties.
13.3 Order Renewal. If Customer does not deliver notice of termination at least thirty (30) days prior to the expiration of the Order Term, this Agreement will automatically renew for a period of time equal to the initial Term (“Renewal Term”). Pricing for the Renewal Term will be subject to Section 7.6.
(a) TestFit will make a reasonable effort to notify Customer ninety (90) days prior to this Agreement automatically renewing to the extent there are any applicable changes to pricing.
(b) If notice of non-renewal is not given by Customer within thirty (30) days of the expiration of this Agreement, TestFit will charge Customer for the Renewal Term in accordance with TestFit’s then applicable pricing pursuant to Section 7.6, provided that Customer has been notified of any changes in pricing at least forty-five (45) days prior to the beginning of the Renewal Term. If Customer is not provided notice of changes to pricing at least forty-five (45) days prior to the beginning of the Renewal Term, the pricing set forth in the previous Term shall apply for the Renewal Term.
13.4 Termination. In addition to any other termination rights expressly set forth in this Agreement, either Party may terminate this Agreement effective on written termination notice to the other Party, if the other Party materially breaches this Agreement and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(a) TestFit may terminate this Agreement, at any time for convenience, without causing any breach or incurring any additional obligation, liability or penalty, upon thirty (30) days’ prior written notice to Customer
(b) TestFit may terminate this Agreement effective immediately upon written notice to Customer, if Customer: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.5 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement:
(a) all rights, licenses, consents and authorizations granted by TestFit to the Customer hereunder will immediately terminate;
(b) TestFit will promptly (i) cease use of Customer’s Confidential Information and (ii) return or destroy Customer’s Confidential Information in TestFit’s possession; provided, however, that (1) TestFit’s obligations under this Section 13.5(b) do not apply to any Usage Data, (2) TestFit may retain Customer Data in its then-current state to the extent required by applicable Law and (3) TestFit may retain Customer Data in its backups, archives and disaster recovery systems, as applicable, until such Customer Data is deleted in the ordinary course;
(c) Customer shall promptly (i) cease all use of TestFit Materials, (ii) return to TestFit, or at TestFit’s written request destroy, all documents and materials containing, reflecting, incorporating, or based on any TestFit Materials or TestFit Confidential Information and (iii) erase all TestFit Materials and TestFit Confidential Information from all systems Customer or its Authorized Users directly or indirectly controls;
(d) TestFit may disable all Customer and Authorized User access to TestFit Materials; and
13.4 Survival. Together with any other right or obligation hereunder that, by its nature, should so survive, the following Sections will survive any termination or expiration of this Agreement: 2.1 (Use Restrictions), 8 (Confidentiality), 9 (Intellectual Property Rights), 10.3 (Disclaimer), 11 (Indemnification), 12 (Limitations of Liability), 13.5 (Effect of Termination or Expiration), 13.4 (Survival), 14 (Miscellaneous) and 15 (Definitions).
14. Miscellaneous
14.1 Further Assurances. On either Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be reasonably necessary to give full effect to this Agreement.
14.2 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
14.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party.
14.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver or other communications under this Agreement shall have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such Party may designate from time to time in accordance with this Section 14.4):
If to TestFit:
TestFit Inc., 12400 Coit Road, Suite 568, Dallas, TX 75251
Email: support@testfit.io
If to Customer:
To the email address of the user on file
Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if sent by email during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) five (5) days after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
14.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.7 Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency or conflict between provisions contained in this Agreement or any policies or other documents incorporated by reference into this Agreement, the following order of precedence shall govern: (a) first, this Agreement, excluding policies and other documents incorporated by reference into this Agreement; and (b) second policies and other documents incorporated by reference into this Agreement. If the Parties enter into, or have entered into, an agreement for paid software or services, that agreement will supersede this Agreement as to the subject matter thereof.
14.8 Assignment. Customer shall not assign or delegate any of its rights, obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without TestFit’s prior written consent. TestFit may assign this Agreement, including any of its rights or obligations hereunder upon written notice to Customer. Any purported assignment, delegation or transfer in violation of this Section 14.8 is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
14.9 Force Majeure. TestFit will not be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement to the extent such failure or delay is caused by any circumstances beyond TestFit’s reasonable control (a “Force Majeure Event”). Force Majeure Events include but are not limited to (i) acts of God; (ii) flood, fire, earthquake or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, Law or actions; (v) embargoes or blockades; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. In the event TestFit determines that it is unable to continue performance of this Agreement due to a Force Majeure Event, TestFit may terminate this Agreement upon notice to Customer. TestFit will have no further obligations or liability under this Agreement following such a termination.
14.10 No Third-Party Beneficiaries. Except as otherwise expressly set forth in this Agreement, (a) this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and (b) nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14.11 Amendment and Modification; Waiver. No amendment to, or modification, rescission, termination or discharge of, this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.13 DISPUTE RESOLUTION; BINDING ARBITRATION.
(a) NO REPRESENTATIVE ACTIONS. TESTFIT AND CUSTOMER AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT IS PERSONAL TO TESTFIT AND COMPANY AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
(b) ARBITRATION OF DISPUTES. EXCEPT FOR SMALL CLAIMS DISPUTES IN WHICH CUSTOMER OR TESTFIT SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR DISPUTES IN WHICH CUSTOMER OR TESTFIT SEEKS INJUNCTIVE OR EQUITABLE RELIEF AS PERMITTED UNDER THIS AGREEMENT, EACH OF TESTFIT AND COMPANY WAIVES ITS RIGHTS TO A JURY TRIAL AND TO HAVE ANY OTHER DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY TESTFIT MATERIALS OR THE SERVICES (COLLECTIVELY “DISPUTES”) RESOLVED IN COURT. INSTEAD, FOR ANY DISPUTE THAT CUSTOMER ASSERTS AGAINST TESTFIT, CUSTOMER AGREES TO FIRST CONTACT TESTFIT AND ATTEMPT TO RESOLVE THE DISPUTE INFORMALLY BY SENDING WRITTEN NOTICE OF THE DISPUTE TO TESTFIT IN ACCORDANCE WITH SECTION 14.4. THE NOTICE MUST (I) INCLUDE CUSTOMER’S NAME, ADDRESS, EMAIL ADDRESS AND TELEPHONE NUMBER, (II) DESCRIBE THE NATURE AND BASIS OF THE DISPUTE AND (III) SET FORTH THE SPECIFIC RELIEF SOUGHT. SUBJECT TO TESTFIT’S OTHER REMEDIES SET FORTH ELSEWHERE IN THIS AGREEMENT, TESTFIT’S NOTICE TO CUSTOMER OF A DISPUTE WILL BE SIMILAR IN FORM TO THAT DESCRIBED ABOVE. IF TESTFIT AND CUSTOMER CANNOT REACH AN AGREEMENT TO RESOLVE THE DISPUTE WITHIN THIRTY (30) DAYS AFTER SUCH NOTICE IS RECEIVED, THEN EITHER PARTY MAY SUBMIT THE DISPUTE TO BINDING ARBITRATION ADMINISTERED BY JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”) OR, UNDER THE LIMITED CIRCUMSTANCES DESCRIBED ABOVE, IN COURT.
(c) PROCEEDINGS. ALL DISPUTES SUBMITTED TO JAMS WILL BE RESOLVED THROUGH CONFIDENTIAL, BINDING ARBITRATION. ARBITRATION PROCEEDINGS WILL BE HELD IN DALLAS COUNTY, TEXAS UNLESS CUSTOMER IS AN INDIVIDUAL CONSUMER, IN WHICH CASE CUSTOMER MAY ELECT TO HOLD THE ARBITRATION IN THE UNITED STATES LOCATION NEAREST TO CUSTOMER IN WHICH JAMS HAS OFFICES. FOR PURPOSES OF THIS SECTION 14.13, “CONSUMER” MEANS A HUMAN PERSON USING THE SERVICES FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. CUSTOMER AND TESTFIT AGREE THAT DISPUTES WILL BE ARBITRATED IN ACCORDANCE WITH THE JAMS STREAMLINED ARBITRATION RULES AND PROCEDURES (“JAMS RULES”). THE MOST RECENT VERSION OF THE JAMS RULES ARE AVAILABLE ON THE JAMS WEBSITE AND ARE HEREBY INCORPORATED BY REFERENCE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS READ AND UNDERSTANDS THE JAMS RULES AND WAIVES ALL CLAIMS THAT THE JAMS RULES ARE UNFAIR OR SHOULD NOT APPLY FOR ANY REASON.
(d) FAA. CUSTOMER AND TESTFIT AGREE THAT THIS AGREEMENT AFFECTS INTERSTATE COMMERCE AND THAT THE ENFORCEABILITY OF THIS SECTION 14.13 WILL BE SUBSTANTIALLY AND PROCEDURALLY GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. § 1, ET SEQ. (“FAA”) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AS LIMITED BY THE FAA, THIS AGREEMENT AND THE JAMS RULES, THE ARBITRATOR WILL HAVE EXCLUSIVE AUTHORITY TO MAKE ALL PROCEDURAL AND SUBSTANTIVE DECISIONS REGARDING ANY DISPUTE AND TO GRANT ANY REMEDY THAT WOULD OTHERWISE BE AVAILABLE IN COURT, INCLUDING THE POWER TO DETERMINE THE QUESTION OF ARBITRABILITY. THE ARBITRATOR MAY CONDUCT ONLY AN INDIVIDUAL ARBITRATION AND CANNOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, PRESIDE OVER ANY TYPE OF CLASS OR REPRESENTATIVE PROCEEDING OR PRESIDE OVER ANY PROCEEDING INVOLVING MORE THAN ONE INDIVIDUAL.
(e) INFORMATION EXCHANGED. THE ARBITRATION WILL ALLOW FOR THE DISCOVERY OR EXCHANGE OF NON-PRIVILEGED INFORMATION RELEVANT TO THE DISPUTE. THE ARBITRATOR, CUSTOMER AND TESTFIT WILL EACH MAINTAIN THE CONFIDENTIALITY OF ALL ARBITRATION PROCEEDINGS, JUDGMENTS AND AWARDS, INCLUDING INFORMATION GATHERED, PREPARED AND PRESENTED FOR PURPOSES OF THE ARBITRATION OR RELATED TO THE DISPUTE(S) SUBJECT THERETO. THE ARBITRATOR WILL HAVE THE AUTHORITY TO MAKE APPROPRIATE RULINGS TO SAFEGUARD CONFIDENTIALITY UNLESS APPLICABLE LAW PROVIDES TO THE CONTRARY. THE DUTY OF CONFIDENTIALITY DOES NOT APPLY TO THE EXTENT THAT DISCLOSURE IS NECESSARY TO PREPARE FOR OR CONDUCT THE ARBITRATION HEARING ON THE MERITS, IN CONNECTION WITH A COURT APPLICATION FOR A PRELIMINARY REMEDY OR IN CONNECTION WITH A JUDICIAL CHALLENGE TO AN ARBITRATION AWARD OR ITS ENFORCEMENT, OR TO THE EXTENT THAT DISCLOSURE IS OTHERWISE REQUIRED BY APPLICABLE LAW OR JUDICIAL DECISION OF A COURT WITH COMPETENT JURISDICTION.
(f) TIMING. ALL DISPUTES ASSERTED BY CUSTOMER AGAINST TESTFIT MUST BE ASSERTED AND FILED WITHIN ONE (1) YEAR OF CUSTOMER’S FIRST KNOWLEDGE OF THE EVENTS OR CIRCUMSTANCES GIVING RISE TO THE DISPUTE; OTHERWISE CUSTOMER’S ASSERTION OF SUCH DISPUTE IS PERMANENTLY BARRED, MEANING CUSTOMER WILL NOT HAVE THE RIGHT TO ASSERT THE DISPUTE OR ANY ASSOCIATED CLAIMS.
(g) OPT OUT. CUSTOMER HAS THE RIGHT TO OPT OUT OF BINDING ARBITRATION BY PROVIDING WRITTEN NOTICE THEREOF TO TESTFIT WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT. IN ORDER FOR THE OPT OUT NOTICE TO BE EFFECTIVE, SUCH NOTICE MUST (I) INCLUDE CUSTOMER’S FULL LEGAL ENTITY NAME AND ADDRESS AND (II) CLEARLY INDICATE CUSTOMER’S INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, CUSTOMER AGREES TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 14.14.
(h) IF ANY PORTION OF THIS SECTION 14.13 IS FOUND TO BE UNENFORCEABLE OR UNLAWFUL FOR ANY REASON, (I) THE UNENFORCEABLE OR UNLAWFUL PROVISION SHALL BE SEVERED FROM THIS AGREEMENT, (II) SEVERANCE OF THE UNENFORCEABLE OR UNLAWFUL PROVISION SHALL HAVE NO IMPACT WHATSOEVER ON THE REMAINDER OF THIS SECTION 14.13 OR THE PARTIES ABILITY TO COMPEL ARBITRATION OF ANY REMAINING CLAIMS OR DISPUTES ON AN INDIVIDUAL BASIS AND (III) TO THE EXTENT THAT ANY CLAIMS OR DISPUTES MUST THEREFORE PROCEED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS, SUCH CLAIMS OR DISPUTES MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION AND NOT IN ARBITRATION, AND THE PARTIES AGREE THAT LITIGATION OF THOSE CLAIMS OR DISPUTES SHALL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL CLAIMS OR DISPUTES IN ARBITRATION. FURTHER, IF ANY PART OF THIS SECTION 14.13 IS FOUND TO PROHIBIT AN INDIVIDUAL CLAIM SEEKING PUBLIC INJUNCTIVE RELIEF, THAT PART WILL HAVE NO EFFECT TO THE EXTENT SUCH RELIEF IS ALLOWED TO BE SOUGHT OUT OF ARBITRATION, AND THE REMAINDER OF THIS SECTION 14.13 WILL BE ENFORCEABLE.
14.14 Governing Law; Dispute Resolution.
(a) This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any suit, action, proceeding or other Dispute between the Parties that is not subject to arbitration or cannot be heard in small claims court pursuant to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case, located in Dallas County, Texas. Each Party irrevocably submits to the exclusive jurisdiction of such courts with respect to any such suit, action, proceeding or other Dispute that is unable to be resolved in arbitration or small claims court pursuant to this Agreement. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, proceeding or Dispute brought in any such court.
(b) Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in connection with any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14.15 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 6, 2.1 or 3.3 would cause TestFit irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, TestFit will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as the original acceptance of this Agreement.
15. Definitions
15.1 “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
15.2 “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
15.3 “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.
15.4 “Agreement” has the meaning set forth in the preamble.
15.5 “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
15.6 “Availability Requirement” has the meaning set forth in Section 4.1.
15.7 “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet.
15.8 “Backup Policy” has the meaning set forth in Section 5.
15.9 “Confidential Information” has the meaning set forth in Section 8.1.
15.10 “Customer” has the meaning set forth in the preamble.
15.11 “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded or otherwise received from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Usage Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
15.12 “Customer Failure” has the meaning set forth in Section 3.2.
15.13 “Customer Systems” has the meaning set forth in Section 6.2.
15.14 “Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by TestFit or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of TestFit or its designee.
15.15 “Disclosing Party” has the meaning set forth in Section 8.1.
15.16 “Documentation” means any manuals, instructions, or other documents or materials that TestFit provides or makes available to Customer and which describe the functionality, components, features, or requirements of certain TestFit Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
15.17 “Exception” means any (a) act or omission of Customer or any Authorized User; (b) Customer Failure; (c) Internet connectivity (or lack thereof) of Customer or any Authorized User; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility, or other matter not directly supplied by TestFit under this Agreement; (f) Scheduled Downtime or (g) disabling, suspension or termination of the Services pursuant to Section 1.6.
15.18 “Feedback” has the meaning set forth in Section 9.3.
15.19 “Force Majeure Event” has the meaning set forth in Section 14.9.
15.20 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or TestFit Systems as intended by this Agreement. Harmful Code does not include any Disabling Device.
15.21 “Indemnitee” has the meaning set forth in Section 11.3.
15.22 “Indemnitor” has the meaning set forth in Section 11.3.
15.23 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
15.24 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
15.25 “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
15.26 “On-Premises Software” means software provided by TestFit to Customer under this Agreement that must be installed on hardware owned or controlled by Customer in order for Customer to make use of the Services.
15.27 “Order” means a Services subscription purchase order that is executed by the Parties through the website or a separate agreement entered into by the Parties.
15.28 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
15.29 “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
15.30 “Receiving Party” has the meaning set forth in Section 8.1.
15.31 “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors and agents.
15.32 “Service Period” has the meaning set forth in Section 4.1.
15.33 “Services” means the TestFit software-as-a-service offering(s) made available to Customer under this Agreement. TestFit may, upon notice to Customer, modify, discontinue or require payment of fees for continued use of the Services
15.34 “Subcontractor” means third parties utilized by TestFit in connection with TestFit’s performance under this Agreement.
15.35 “Term” has the meaning set forth in Section 13.1.
15.36 “TestFit” has the meaning set forth in the preamble.
15.37 “TestFit Indemnitee” has the meaning set forth in Section 11.2.
15.38 “TestFit Materials” means the Services, Documentation, TestFit Systems and On-Premises Software, as well as any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by TestFit or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or TestFit Systems. For the avoidance of doubt, TestFit Materials include Usage Data and any information, data, or other content derived from TestFit’s monitoring of Customer’s access to or use of the Services.
15.39 “TestFit Systems” means the information technology infrastructure used by or on behalf of TestFit in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by TestFit or through the use of third-party services.
15.40 “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to TestFit.
15.41 “Usage Data” means all data or information that TestFit collects about (a) Customer’s activity on, or use of, the Services, including command usage, configurator types, site location, and statistical and performance data and information; or (b) how Customer accesses the Services, including data about devices, networks, hardware models, operating systems or versions thereof, mobile networks, IP addresses, unique device identifiers, browser types and app versions. TestFit uses Usage Data in accordance with TestFit’s Privacy Policy at https://testfit.io/privacy/, as amended from time to time. TestFit aggregates and anonymizes Usage Data before sharing with third parties that are not (x) TestFit agents involved in TestFit’s performance under this Agreement or (y) TestFit Affiliates.