End User License Agreement
This End User License Agreement, along with the Quote, (collectively, the “Agreement”) is a binding agreement between the Customer named on the Quote (or “you” or “your”) and TestFit, Inc., a Delaware corporation (“TestFit”) (each, a “Party,” and collectively, the “Parties”) that governs your purchase, license and use of TestFit’s Software (collectively, the “Software”). The effective date of this Agreement is the first date that the Quote has been signed by both Parties (“Effective Date”).
1. Definitions
“Authorized Users” means solely those individuals authorized to use the Software pursuant to the license granted under this Agreement, as set forth in the Quote. Authorized Users may be identified by name or number of permitted Authorized Users in the Quote.
“Documentation” means user manuals, technical manuals, and any other materials provided by TestFit, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise nor or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.
“License Fees” means the license fees, including all taxes thereon, pair or required to be paid by you for the license granted under this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means (i) TestFit’s software identified in the Quote or otherwise provided to you by TestFit, (ii) all improvements, upgrades, patches and fixes therefor and (iii) any complete or partial copies of the foregoing.
“Third Party” means any Person other than TestFit or you.
“Use” means install, run, access or use.
“Quote” means the quote provided by TestFit to you for license of the Software and detailing License Fees and other terms and conditions related to the Software.
2. License
Subject to and conditioned upon your payment of the License Fees and your strict compliance with all terms and conditions set forth in this Agreement, TestFit hereby grants to you a limited, non-exclusive, non-sublicensable, non-transferable license during the Term (“License”) to Use, solely by and through your Authorized Users, the Software and Documentation on the number of desktop computers identified in the Quote, provided that (A) each such computer is owned or leased and controlled by, you, and (B) the Software 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.. The License Fees for the License are set forth on the Quote. Unless the Quote expressly states that you are purchasing a network license, each such computer shall be for a single Authorized User.
3. License Restrictions
You shall not, and shall require your Authorized Users not to, directly or indirectly:
(A) Use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
(B) provide any other Person, including any subcontractor, independent contractor, affiliate or service provider with access to the Software or Documentation;
(C) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(D) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(E) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(F) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or property rights notices provided on or with the Software or Documentation;
(G) except as may be expressly set forth in this Agreement, copy the Software or Document, in whole or in part;
(H) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the Internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(I) Use the software or Documentation in, or in association with, the design construction, maintenance or operation of any hazardous environments or systems, as determined by TestFit in TestFit’s reasonable discretion. In the event you have a question on whether any environment or system is hazardous, you shall promptly notify TestFit and TestFit will render a decision in its sole discretion on whether use with such environment or system is permissible hereunder;
(J) Use the Software or Documentation in violation of any law, regulation or rule;
(K) Use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to TestFit’s commercial disadvantage;
(L) Use the Software in a server or managed services arrangement; or
(M) attempt to probe, scan or test the vulnerability of the Software or circumvent any access control or digital rights management measures or technology thereof.
You shall notify TestFit immediately if you learn of any other Person doing any of the activities listed in subsections (A)-(M) above.
4. Payment
4.1. TestFit will invoice Customer for all amounts as specified in the Quote. Unless otherwise specified in the Quote, you shall pay all invoiced amounts within thirty (30) days of receipt of such invoice.
4.2. Unless you provide TestFit with a valid and correct tax exemption certificate applicable to your purchase, you are responsible for all taxes associated with the Quote, except for franchise taxes payable by TestFit and taxes based on TestFit’s net income.
4.3. All payments by you shall be in US dollars and are non-refundable unless otherwise set forth in this Agreement.
5. Delivery
TestFit will ship or make the Software electronically available to you within five (5) days after the Effective Date, or otherwise by the date agreed by the parties (“Delivery Date”). You must notify TestFit within seven (7) days of receiving or accessing the Software if you believe that any part of your purchase is incorrect, missing or damaged.
6. Term and Termination
This Agreement shall become effective as of the Effective Date, and will continue in effect unless terminated upon the earliest to occur of: (i) expiration or termination of the last License granted hereunder, (ii) thirty (30) days (or ten (10) days in the case of non-payment of fees) after TestFit gives you notice of your material breach of any provision of this Agreement which is capable of cure, unless you have cured such breach within such thirty (30)-day period or (iii) immediately upon your receipt of notice from TestFit of your material breach of any provision of this Agreement which is incapable of cure. Sections 6, 11, 12 and 13, 16 and 19 of this Agreement shall survive, and all accrued payment obligations, all rights of action for breach of this Agreement prior to termination or expiration, and such other provisions that, by their terms, survive termination or expiration. Upon termination of this Agreement, you must immediately stop all Use of the Software and Documentation, and permanently delete all copies thereof in every form.
7. Support
You may self-support your Use of the Software by reference to the Documentation. If you have questions regarding Use of the Software, please visit https://testfit.io/contact-us/ for information on how to contact us. From time to time TestFit may provide you access to patches and updates to the Software. Failure to install such patches or updates will limit your remedies under this Agreement.
8. Limited Warranty
TestFit warrants that during the thirty (30)-day period after the Delivery Date (“Software Warranty Period”), the Software will substantially conform to the Documentation (“Software Warranty”). TestFit does not warrant that your operation of the Software will be uninterrupted or free from minor defects or errors that do not materially affect such performance, or that the Software is designed to meet all of your business requirements. This Software Warranty is non-transferable.
9.Sole Remedy
If TestFit receives a valid claim, such validity to be determined by TestFit in its sole discretion, of non-conformance from you within the Software Warranty Period, then at TestFit’s option and to the extent permitted by law, TestFit will either (a) correct the non-conformity at no charge to you, or (b) refund amounts actually paid by you to TestFit for such Software, in which case the License and this Agreement will terminate. You understand and agree that your configuration of such Software, your data and/or other information may be irretrievably lost or altered during warranty service. You shall make a backup of all relevant data as a precaution against operational failures. TestFit will not configure Software according to your settings.
10. Exclusions and Limitations
The Software Warranty does NOT cover non-conformance caused by (A) modification of the Software not performed or authorized by TestFit, or caused by Third-Party Services, (B) Use of the Software that is not in accordance with the Documentation or this Agreement, or (C) your violation of this Agreement. Modification of the Software not performed or authorized by TestFit automatically voids the Software Warranty.
11. Intellectual Property Rights; Protection of Proprietary Information
11.1 You acknowledge that the Software and Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights to the Software or Documentation other than to Use the Software and Documentation in accordance with the License granted under this Agreement, subject to all terms, conditions and restrictions. TestFit and its licensors and service providers each reserve and shall retain their entire right, title and interest in and to the Software and Documentation and all Intellectual Property Rights arising out of or relating to the Software and Documentation, subject to the License expressly granted to you under this Agreement. You shall safeguard all Software and Documentation from infringement, misappropriation, theft, misuse or unauthorized access. You shall promptly notify TestFit if you become aware of any infringement of TestFit’s Intellectual Property Rights in the Software or Documentation and fully cooperate with TestFit in any legal action taken by TestFit to enforce its or its licensors Intellectual Property Rights.
11.2 Each Party shall hold the other Party’s Proprietary Information in confidence, and will take all reasonable steps to protect the other Party’s Proprietary Information from disclosure to Third Parties. “Proprietary Information” means: (A) with respect to TestFit, the Software, Documentation, Quote, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (B) with respect to TestFit, the concepts, techniques, ideas and know-how embodied and expressed in the Software and Documentation; and (C) information which reasonably should be deemed as the confidential and proprietary information of either Party and each of their licensors. Property Information does not include any information which: (X) is or becomes publicly available through no act or failure of the other Party; (b) was or is rightfully acquired by the other Party from a source other than the disclosing Party prior to receipt from the disclosing Party; (c) becomes independently available to the other Party as a matter of right; or (d) is disclosed to the other Party by a Third Party that is not otherwise obligated to keep such information confidential. Neither Party will use or disclose the other Party’s Proprietary Information to any Third Party, except as expressly permitted hereunder. If a Party is requested or ordered pursuant to, or required by, law to disclose the other Party’s Proprietary Information, then the Party so requested or ordered shall notify the other Party promptly in writing of such requirement so that the other Party may seek a protective order or other appropriate remedy, and if no such protective order is obtained, or the other Party waives compliance with this Section 11, then the Party so requested or ordered will disclose only that portion of such Proprietary Information which it is advised in writing by its legal counsel as legally required to be disclosed, and further will use commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Proprietary Information. This protection provision will survive termination of this Agreement.
12. Open Source Materials
The Software 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 Software 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.
13. Third-Party Services
The Software may rely on or link to third-party services such as Google Maps, Mapquest or Mapzen (collectively, “Third-Party Services”). Accordingly, you are responsible for providing an Internet connection through which the Software may access Third-Party Services, 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 SERVICES. YOUR USE OF THE SOFTWARE DEPENDS ENTIRELY ON THE QUALITY, AVAILABILITY, EXISTENCE, FEATURES OR UPTIME OF THE THIRD-PARTY SERVICES. TESTFIT DOES NOT CONTROL AND DOES NOT GUARANTEE THE AVAILABILITY OF ANY THIRD-PARTY SERVICES. THIRD-PARTY SERVICES MAY BE DISCONTINUED, DEPRECATED OR MODIFIED AT ANY TIME AND WITHOUT NOTICE TO YOU OR TO TESTFIT. TESTFIT WILL NOT REFUND ANY LICENSE FEES OR EXTEND ANY WARRANTY DUE TO FAILURE, CHANGE, INTERRUPTION, ERROR, DEGRADATION, LOSS OR DAMAGE RESULTING FROM OR ARISING OUT OF A THIRD-PARTY SERVICE, EVEN IF SUCH THIRD-PARTY SERVICE IS DISCONTINUED, DEPRECATED OR MODIFIED TO NO LONGER FUNCTION WITH THE SOFTWARE.
THIRD-PARTY SERVICES MAY DELIVER ADVERTISING AND OTHER CONTENT TO YOU, OR MONITOR YOUR USE IN WAYS THAT YOU MAY NOT EXPECT OR DESIRE. THIRD-PARTY SERVICES MAY NOT BE SECURE, MAY TRACK YOU AND YOUR USE OF THE THIRD-PARTY SERVICES, 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 SERVICES. TESTFIT DISCLAIMS ALL LIABILITY ARISING FROM YOUR USE OF THIRD-PARTY SERVICES, AND FOR DATA CREATED, HOSTED, MODIFIED, DISPLAYED, COPIED, BROADCAST, PERFORMED OR DELIVERED BY YOU.
YOU WILL DEFEND AND INDEMNIFY TESTFIT, ITS AFFILIATES AND EACH OF THEIR LICENSORS AND SERVICE PROVIDERS AGAINST ANY THIRD-PARTY CLAIM OR ACTION RESULTING FROM OR ARISING OUT OF (A) YOUR USE OF A THIRD-PARTY SERVICE, (C) YOUR VIOLATION OF ANY LICENSE, TERMS OF USE OR PRIVACY POLICY OF A THIRD-PARTY SERVICE, OR (D) RELATING TO DATA YOU TRANSMIT OR UTILIZE IN CONNECTION WITH THE SOFTWARE.
14. Indemnification
14.1. TestFit will indemnify and hold you harmless against any third-party claim or action that your Use of the Software (expressly excluding third-party (including open source) materials, data and software) (“Covered Software”) delivered to you under this Agreement in accordance with the terms of this Agreement infringes or misappropriates a Third Party’s United States patent, copyright, trade secret or trademark rights (“Indemnified Claims”). If, in TestFit’s reasonable opinion, an Indemnified Claim is likely to result in an adverse ruling, then TestFit will, at its sole option and as your sole remedy with respect to Indemnified Claims: (A) obtain a right for you to continue using such Covered Software, (B) modify such Covered Software to make it non-infringing or non-misappropriating, (C) replace such Covered Software with a non-infringing and non-misappropriating substantial equivalent, or (D) provide a reasonable depreciated or pro rata refund for such Covered Software. Notwithstanding the foregoing, TestFit will have no obligation under this Section 14.1 for any claim or action resulting or arising from (1) combination, operation or Use of the Covered Software with third-party software or service including, without limitation, open source materials and software, whether or not provided by TestFit, (2) any modification of the Software that was not performed by TestFit, (3) TestFit’s compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you, or (4) your failure to install any patch or update made available to you by TestFit. TestFit’s obligations under this Section 14.1are contingent on (X) your prompt notification to TestFit of the third-party claim or action for which you seek indemnification, (Y) your giving TestFit the sole right to control the defense and resolution of such claim or action, and (Z) your full cooperation with TestFit in defending and resolving such claim or action. TestFit’s liability under this intellectual property indemnification provision is limited to two (2) times the aggregate amounts that you paid to TestFit for the allegedly infringing or misappropriating Covered Software under this Agreement.
14.2. You will indemnify and hold harmless TestFit, its affiliates and each of their licensors and service providers against any third-party claim or action resulting from or arising out of (A) your breach, violation or misappropriation of TestFit’s Intellectual Property Rights and other proprietary rights set forth in this Agreement; (B) other than with respect to Indemnified Claims, your violation of any Third Party’s Intellectual Property Rights; (C) any allegation made against TestFit due to your violation or alleged violation of export laws, regulation or orders, or (D) your breach of this Agreement.
15. EXCLUSIONS AND LIMITATIONS
TO THE EXTENT PERMITTED BY LAW, THE WARRANTIES AND REMEDIES IN THIS AGREEMENT CONSTITUTE TESTFIT’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR DEFECTIVE OR NON-CONFORMING SOFTWARE, AND ARE PROVIDED IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, TESTFIT EXPRESSLY DISCLAIMS ALL OTHER STATUTORY, EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AGAINST LATENT OR HIDDEN DEFECTS. TESTFIT DOES NOT REPRESENT OR WARRANT THAT ANY SOFTWARE OR SERVICE PROVIDED HEREUNDER WILL BE CAPABLE OF ACHIEVING A PARTICULAR RESULT FOR THE CUSTOMER’S BUSINESS, OR THAT ANY SOFTWARE OR SERVICE WILL BE NON-INFRINGING OR NON-MISAPPROPRIATING, OR THAT THE OPERATION OR USE OF ANY SOFTWARE WILL BE FREE OF VIRUSES, WORMS, DISABLING CODE OR ERRORS, OR THAT ANY SOFTWARE USE OR RESULTS THEREOF OR DATA OBTAINED OR GENERATED THEREBY WILL BE CORRECT, ACCURATE, OF SATISFACTORY QUALITY, COMPLETE, SUITABLE, EFFECTIVE OR RELIABLE, OR THAT ALL DEFECTS OR NON-CONFORMANCE (LATENT OR OTHERWISE) IN SUCH SOFTWARE CAN BE FOUND OR CORRECTED. TESTFIT DISCLAIMS ANY REPRESENTATION THAT IT WILL BE ABLE TO REPAIR OR REPLACE ANY SOFTWARE UNDER ANY WARRANTY HEREIN WITHOUT RISK TO OR LOSS OR DISCLOSURE OF DATA STORED THEREON.
IF APPLICABLE LAW FORBIDS TESTFIT FROM DISCLAIMING STATUTORY, EXPRESS OR IMPLIED WARRANTIES, THEN ALL SUCH WARRANTIES WILL BE LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD, AND, WITH RESPECT TO SOFTWARE, TO BRINGING THE SOFTWARE BACK INTO CONFORMANCE WITH ITS WRITTEN FUNCTIONAL SPECIFICATIONS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR ALLOW DISCLAIMER OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN REMEDIES OR DAMAGES SET FORTH ABOVE, SO THE ABOVE LIABILITY LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
16. LIMITATION OF LIABILITY
TO THE EXTENT ALLOWED BY APPLICABLE LAW, AND SUBJECT TO TESTFIT’S INDEMNIFICATION OBLIGATIONS, NEITHER TESTFIT NOR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE LICENSORS OR SERVICES PROVIDERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY BREACH OF CONTRACT OR WARRANTY, CONTRACT TERMINATION, NEGLIGENCE, TORT, STRICT LIABILITY, INDEMNITY, AT LAW OR IN EQUITY, OR OTHER THEORY (A) FOR INTERRUPTION OF USE, FOR LOSS OR INACCURACY OR CORRUPTION OF SOFTWARE OR DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACT, LOSS OF USE, LOSS OF REVENUE, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OF OR DAMAGE TO OR COMPROMISE OR CORRUPTION OF DATA, COSTS OF REPLACING EQUIPMENT OR PROPERTY, COSTS OF REMOVING VIRUSES, COSTS OF RECOVERING PROGRAMMING OR DATA, COSTS OF REPRODUCING ANY PROGRAM OR DATA STORED OR USED WITH THE SOFTWARE OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF PROGRAMMING OR DATA STORED ON SUCH SOFTWARE, AND PENALTIES OR INTEREST ASSESSED OR LEVIED BY GOVERNMENT AGENCIES OR (C) FOR ANY AGGREGATE AMOUNTS IN EXCESS OF FEES PAID BY CUSTOMER TO TESTFIT HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE LIMITATIONS SET FORTH IN THIS SECTION 16 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL WITH REGARDS TO THEIR ESSENTIAL PURPOSE. SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
17. Responsibility for Use of the Software
You are responsible and liable for all Uses of the Software and Documentation through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by your Authorized Users or by and Person to whom you or an Authorized User may provide access to or Use of the Software or Documentation, whether such access or Use is permitted by or in violation of this Agreement.
18. Compliance Measures
18.1 The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the 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.
18.2. Upon TestFit’s reasonable written request, you shall conduct a review of your and your Authorized Users Use of the 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:
(A) You shall immediately remedy such noncompliance and provide TestFit with written notice thereof. You shall provide TestFit with all access and assistance as TestFit reasonably requests to further evaluate and remedy such noncompliance.
(B) If your Use of the Software exceeds the number of copies or Authorized Users permitted under the Quote, TestFit shall have the remedies set forth in Section 18.4.
18.3. During the Term, TestFit may, in TestFit’s sole discretion, audit your use of the 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 Software and removed all copies of the 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.
18.4. If any of the measures taken or implemented under this Section 18 results in a determination by TestFit that your use of the Software exceeds or exceeded the Use permitted by this Agreement, then:
(A) you shall, within ten (10) days following the date of TestFit’s written notification to you thereof, pay to TestFit the retroactive License Fees for such excess use and, unless TestFit terminates this Agreement pursuant to Section 18.4(C), obtain and pay for a valid license to bring your Use into compliance with this Agreement. In determining the License Fee payable pursuant to the foregoing, (i) unless you can demonstrate otherwise by documentary evidence, all excess Use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by TestFit hereunder, and continued uninterrupted thereafter, and (ii) the rates for such licenses shall be determined without regard to any discount to which you may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
(B) If the Use exceeds or exceeded the Use permitted by this Agreement by more than ten percent (10%) you shall also pay to TestFit, within ten (10) days following the receipt of TestFit’s written request therefor, TestFit’s reasonable costs incurred in conducting the applicable audit.
(C) If the Use exceeds or exceeded the Use permitted by this Agreement by more than 20%, TestFit shall also have the right to terminate this Agreement and the License granted hereunder, effective immediately upon written notice to you.
TestFit’s remedies set forth in this Section 18.4 are cumulative and are in addition to, and not in lieu of, all other remedies TestFit may have at law or in equity, whether under this Agreement or otherwise.
19. General Provisions
19.1. High-Risk Disclaimer. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance or for inherently dangerous activities, such as in the operation of aircraft navigation or communication systems, biohazard containment facilities, nuclear facilities, weapons systems, life-support machines, air traffic control, or any other application in which the failure of the Software could lead directly to death, personal injury or serious bodily or property damage. Use of this Software is not a substitute for your professional judgment. TESTFIT EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
19.2. Publicity. Neither Party may use the name, trademark or logo of the other Party in publicity, advertising or similar activity without the prior written consent of the other Party, except that you agree that TestFit may list you as a customer on TestFit’s website or as part of TestFit’s marketing efforts.
19.3. Privacy. TestFit collects certain information in connection with your Use of the Software. TestFit uses such information for the purposes described in TestFit's Privacy Policy. Third-Party Services may also track your Use of the Third-Party Services with respect to the Software, and privacy policies of Third-Party Services may apply. For a more detailed explanation of TestFit’s processing of such information and relevant privacy policies, please review TestFit’s Privacy Policy.
19.4. Data Disclaimer. Other than as provided in this Agreement, TestFit does not control your Use of the Software. You are solely responsible for complying with all intellectual property and privacy statutes, and for obtaining all necessary intellectual property rights to any and all third-party data that you process using the Software.
19.5. Prohibition Against Assignment. You may not assign, transfer or sublicense this Agreement or any obligation or right under this Agreement to any Person without the prior written consent of TestFit, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
19.6. Notices and Requests. All notices, requests and other communications by one Party to the other hereunder shall be in writing and shall be delivered in person or sent by registered mail, by nationally recognized overnight courier service or by facsimile transmission (with confirmation of receipt) to the address or facsimile number of the other Party set forth in the Quote or to such other address designated in writing by the receiving Party. Unless otherwise provided, notice shall be effective the earlier of: (i) three (3) days after the date it is officially recorded as having been sent, or (ii) the date of receipt (if received before 5:00 p.m. local time, or the next day if after such time, as evidenced by delivery receipt or equivalent).
19.7. Controlling Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the United States and of the State of Texas, without regards to conflicts of law principles. If any conflicts arise between foreign law, rules and regulations, and the United States of America law, rules and regulations, United States of America law, rules and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. All disputes arising out of this Agreement shall be resolved in the state or federal courts located in Dallas County, Texas. Each Party hereto submits to the exclusive personal jurisdiction of such courts, and waive any argument of forum non conveniens.
19.8. No Class Actions. YOU SHALL NOT JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST TESTFIT OR OTHER CUSTOMERS OF TESTFIT, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
19.9. Limitation Period. NEITHER PARTY WILL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
19.10. Compliance with Export Laws. The Software and Documentation therefor are being released or transferred to you in the United States and are therefore subject to U.S. export control laws. You shall comply with all applicable export laws, restrictions and regulations of U.S. and foreign jurisdictions and will not export or re-export, or allow the export or re-export, of any Software, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations.
19.11. U.S. Government Restricted Rights. The Software is “commercial computer software,” and all Documentation therefor is “commercial computer Documentation,” as those terms are defined and used at 48 C.F.R. 2.101 and 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Customers acquire or license the Software and Documentation therefor with only those rights set forth herein. The contractor/manufacturer of the Software and Documentation therefor is TestFit, which may be contacted at the address at the bottom of this page.
19.12. Relationship of the Parties. The relationship of the Parties hereunder is that of independent contractors. Nothing in this Agreement will be construed to constitute either Party as the agent, employee or representative of the other Party and no joint venture or partnership will be created hereby. Neither Party will make or have the power or authority to act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
19.13. Amendment and Waiver. No amendment, change, waiver or discharge hereof shall be valid unless in writing and signed by both Parties. Any waiver or consent by either Party to any variation from any provision of this Agreement shall be valid only in the specific instance in which it is given, and no such waiver or consent shall be construed as a waiver of any other provision of this Agreement or with respect to any similar instance or circumstance.
19.14. Force Majeure. Neither Party shall be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money and confidentiality obligations) to the extent such failure is caused by acts of God, war, strikes, epidemics, revolutions, lack or failure of transportation facilities, failure of telecommunications providers, fire, laws, governmental regulations or other causes which are beyond the reasonable control of such Party. In the event of such a cause, the Party affected will give prompt written notice to the other Party and undertake continuous and diligent efforts to resume performance.
19.15. Savings Clause. In the event any provision of this Agreement, or the application thereof, becomes or is declared by a tribunal of competent jurisdiction to be illegal, void or unenforceable, that provision shall be (A) limited to the minimum extent possible to render such provision legal, valid and enforceable while preserving the economic, business and other purposes of such illegal, void or unenforceable provision, or (B) eliminated if the foregoing limitation is impossible. The remainder of this Agreement will continue in full force and effect.
19.16. Section Headings. The section headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
19.17. Non-Solicitation of Employees. During the term of this Agreement and for a period of two (2) years thereafter, you agree not to hire or allow any of your affiliates to hire any employee of TestFit or any individual who was an employee or independent contractor of TestFit during the previous twelve (12) months unless TestFit has provided prior written consent thereof.
19.18. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein, including without limitation any information or terms and conditions contained in a Customer-issued RFI, purchase order, policy, regulation or other documentation. This Agreement may be executed in two (2) or more counterparts, all of which taken together will constitute one and the same Agreement.
19.19. Bargained-for Bases. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.