End User License Agreement
IMPORTANT – PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “EULA”) BEFORE INSTALLING OR OTHERWISE USING ANY OF THE TESTM SOFTWARE, THE “TESTM APP” AND OTHER MOBILE APPS, MODULES, FUNCTIONS, PLATFORMS, COMPONENTS, AS MAY BE UPGRADED OR UPDATED FROM TIME TO TIME, AND RELATED SERVICES (THE “LICENSED APPLICATION”) BROUGHT TO YOU BY TESTM INC. (“TESTM”, “WE”, “US”, OR “OUR”). BY INSTALLING THE LICENSED APPLICATION, YOU AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE OR INSTALL THE LICENSED APPLICATION.
1. Scope of License. The License Application is licensed, not sold, to you for use under the terms of this EULA. This license granted to you for the Licensed Application is limited to a non-transferable, non-sublicensable right to use the Licensed Application on any mobile phone or device that you own or control (the “Device”) in order to access the TestM tools created to help you to perform certain tests and checks on your tablet, smart-phone and other similar devices (the “Tested Device”) and receive related information (the “Services”). This license does not allow you to use the Licensed Application on any Device that you do not own or control. TestM, and other names and/or logos used in connection with the License Application are icons identifying TestM and its services are our trademarks. No use of these marks shall be permitted except through our prior written authorization and permission. We reserve all rights not expressly granted to you.
2. DISCLAIMER: THE SERVICES ARE OFFERED SOLELY AS ACCESSORIES INTENDED TO AGGREGATE INFORMATION AND DO NOT, IN ANY WAY, CONSTITUTE LABORATORY TESTING OR A SUBSTITUTE FOR SEEKING PROFESSIONAL ADVICE OR SERVICES. We emphasize that thought we test your Tested Device with very high accuracy there is some Characteristics that we cannot detect or know about all damages with respect to the Tested Device, including without limiting: (i) physical damage such as cracks scratch or broken screen; (ii) poor speaker/earpiece quality; (iii) poor camera quality; (iv) battery vitality; (v) water damage and corrosion; (vi) dead pixels; (vii) screen burn-in and colors damage.
3. License Restrictions:
3.1. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and any relevant usage rules of the Device marketplace where you downloaded the Licensed Application), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application).
3.2. The Services are not intended for the use of users aged 13 and under. By using the Services, you are confirming that you are over such age.
3.3. You may not use the Services for any commercial or non-private use, nor to make unsolicited offers, advertisements, proposals, or send junk mail, to other users of the Services.
3.4. You may not use the Services for any illegal purpose, or in violation of any applicable law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy. You may not post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
3.5. You may not attempt to gain unauthorized access to the Services, or any part of them, other accounts, computer systems or networks connected to the Services through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Services or any activities conducted via the Services by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity;
3.6. You may not use any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services or modify the Services in any manner or form, nor to use modified versions of the Services, including (without limitation) for the purpose of obtaining unauthorized access to the Services.
5. Third Parties Store. You acknowledge and agree that the availability of the Services is dependent on the third-party store from which you downloaded the Licensed Application, such as the Android Play Store or the Apple App Store (each, an “App Store”). You acknowledge that this EULA is between you and us, and not with the App Store. Each App Store may have its own terms and conditions to which you must agree to before downloading the Licensed Application from it, and your use the Licensed Application is also conditioned upon your compliance with such applicable terms.
7. Submissions. In connection with any content that you post on or through the Service or the Licensed Application (each, a “Submission”) you agree that such Submissions are intended for public display on the Licensed Application and hereby grant TestM a worldwide, non-exclusive, perpetual, irrevocable, unrestricted, royalty-free, sub-licensable and transferable license to store and publicly display the Submissions, including for removal of doubts any reviews you post with respect to the Services or any third party services.
8. You acknowledge that we do not pre-screen Third Party Materials or Submission available via the Licensed Application, but we reserve the right in our sole discretion to refuse or remove any content that is available via the Service if we reasonably determine such action is appropriate to prevent errors or any other harm with respect to the Services, it violates this EULA or our policies, or to avoid or limit our liability. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content
9. Termination. The license is effective until terminated by you or by us. Your rights under this license will terminate automatically without notice from us if you fail to comply with any term of this EULA at our sole discretion. We may also impose limits on the use of or access to the Services, in any case and without notice or liability. Upon termination of the license, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
10. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION AND RELIANCE ON TESTM SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE LICENSED APPLICATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES RELATED TO THE SUBJECT MATTER OF THIS EULA EXCEED THE AMOUNT OF ONE DOLLAR ($1). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.RELEASE AND INDEMNIFICATION.
YOU RELEASE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD US, OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHODLERS, AGENTS AND AFFILIATES, HARMLESS FROM ALL LIABILITIES, CLAIMS, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEY’S FEES: (I) RELATED IN ANY WAY TO YOUR USE OF THE LICENSED APPLICATION, THE SERVICES OR THE USER SUBMISSIONS; (II), CLAIMS THAT YOU MAY HAVE THAT ARE RELATED IN ANY WAY TO THE USER SUBMISSIONS, THIRD PARTY MATERIALS, ANY CONTENT FOUND ON THE LICENSED APPLICATION, THE SOFTWARE OR TO ACTIVITIES OR OMISSIONS OF ANY THIRD PARTY; OR (III) RELATED IN ANY WAY TO OR ARISING OUT OF YOUR USE SUBMISSIONS.
13. Copyright and Intellectual Property Infringement Claims.
TestM is committed to protecting the rights of copyright rights holders and seeks to comply with all applicable laws and regulations regarding the protection of intellectual property. If you believe that your copyrights or other intellectual property rights have been violated, please notify us immediately at: [email protected] You must include in your notice a: (1) description of the copyrighted work that is the subject of claimed infringement, (2) description of the infringing material and information sufficient to allow us to locate the alleged material, (3) contact information for you, including your address, telephone number and email address, (4) statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law, (5) statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed, and (6) physical or electronic signature of the copyright owner or a person authorized to act on the owner’s behalf.
14.Credits. The Licensed Application makes use of certain third-party software components.
14.1. The following third-party software used as part of the Licensed Application is licensed under the Apache License, Version 2.0 (the “Apache License”). You may not make use of such third-party software components except in compliance with the Apache License. You may obtain a copy of the Apache License at http://www.apache.org/licenses/LICENSE-2.0 Unless required by applicable law or agreed to in writing, software distributed under the Apache License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the Apache License for the specific language governing permissions and limitations under the Apache License
The following third-party software used as part of the Licensed Application is licensed under the MIT License (the “MIT License”). Permission is hereby granted, free of charge, to any person obtaining a copy of these software components and associated documentation files (the “MIT Software”), to deal in the MIT Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the MIT Software, and to permit persons to whom the MIT Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the MIT Software. THE MIT SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE MIT SOFTWARE:
15. Using iOS Compatible Device. If you are using iOS compatible device, you represents and undertakes as follows:
(i) this EULA is concluded between you and us, and not Apple Inc. (“Apple”);
(ii) you will use our Service on any Apple-branded device that you own or control and as permitted by apple terms set forth in the App Store Terms of Service, except that the Service may be accessed, acquired, and used by other accounts associated with you via family sharing or volume purchasing;
(iii) Apple is not responsible for the Service or any content thereof;
(iv) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service;
(v) without derogating from the other terms of this EULA, in the event of any failure of this Service to conform to any applicable warranty (if applicable), you may notify Apple, and Apple will refund the purchase price for the Service (if applicable) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service;
(vi) any claims by you relating to the Service or your possession and/or use of the Service shall not, in any case, be addressed by Apple;
(vii) in the event of any third party claim that the Service or your possession and use of the Service infringes a third party’s intellectual property rights, Apple will not be in any way responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; and
Apple and Apple subsidiaries are third party beneficiaries of this Agreement and upon your acceptable of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary
(i) The laws of California, excluding its conflicts of law rules, govern this license and your use of the Licensed Application; any controversy, claim, or dispute in connection with, arising under, or related to this EULA shall be settled exclusively in the courts of Los Angeles, California. Your use of the Licensed Application may also be subject to other local, state, national, or international laws.
(ii) Please note that we reserve the right, at our sole discretion, to revise, modify or change or remove portions or all of this EULA, at any time.
(iii) If any provision of this EULA is held to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
(iv) A party’s failure to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision.
(v) The section titles in this EULA are solely used for the convenience and have no legal or contractual significance.
(vi) We may assign this EULA to any party at any time.
Last Updated: January 2018
use of information we collect, receive and store via the TestM mobile software application (the “App”) and our Service (as defined in our Terms of End User License Agreement).
4. What Personal Information We Collect and How We Collect It. We do not currently require you to provide Personal Information in order to have access to general information available on the Site. But, we do receive and/or collect Personal Information from you in one or more of the following ways:
4.1. Account. In order to use certain services that we offer via the App, you may be required to create an account (“Account”). We may offer different options to create an Account, including:
(a) Online Registration Form: You may choose to complete and submit an online registration form. You will be asked to provide us with certain mandatory information such as your name and email address, as well as a password that you will use for your Account. You may choose to provide optional information such as your age and gender.
(b) Third Party Accounts: You may choose to create an Account by clicking on a ‘connect’ or ‘sign-in’ button that we may display on the App for a designated third-party website or service such as Facebook, Google or Twitter (each a “Third Party Account”). Doing so will enable you to link your Service Account and your Third-Party Account. If you choose this option, then you will be required to approve the connection as well as the types of information (which may include Personal Information) that we will obtain from your Third-Party Account and the types of activities that we may perform in connection with your Third Party Account. Please note that in order to use this option, you will need to have, and may need to be signed-in to, an existing Third-Party Account. Regardless of which method you choose to register your Account, we may send an email to your nominated email address to instruct you how to confirm your registration.
4.2. ‘Contact Us’ Information. If you send us a “Contact Us” request, whether by submitting an online form that we make available or by sending an email to an email address that we display, you may be required to provide us with certain information such as your name and email address.
4.3. Share with Friends Service. The App may enable you to invite your friends to use our Services by sending them an invitation email or message. You may do so by: (i) using the App to send or post an invitation message via your Third-Party Account; and/or (ii) using the App to send an invitation email to your friend’s external email address. If you send or post an invitation message, we may collect Personal Information about the recipient such as their email address or their party website account user name and ID.
4.4. Location Data. We may provide certain location-based services (“Location Services”) in connection with the App that are dependent on data related to the geographic location of your mobile device on which the App is installed (“Location Data”). If you choose to participate in these Location Services, you agree that we may collect or obtain your Location Data. You should be able to use the settings on your mobile device to turn off location-sharing features.
4.5. Profile. Some parts of the App may enable you to build a public profile in connection with your Account (“Public Profile”). Your Public Profile will include your name, and other information that you choose to include in your Public Profile, such as your contact information.
4.6. Log Files. We may make use of log Biles. The information inside the log Biles includes internet protocol (IP) addresses, type of browser, Internet Service Provider (ISP), date/time stamp, referring/exit pages, clicked pages and any other information your browser may send to us. We may use such information to analyze trends, administer the Services, track user’s movement around the Services, and gather demographic information.
4.7. Cookies and Other Tracking Technologies. Our Services may utilize “cookies”, anonymous identifiers and other tracking technologies in order to for us to provide our Services and present you with information that is customized for you. A “cookie” is a small text Bile that may be used, for example, to collect information about activity on the Services. Certain cookies and other technologies may serve to recall Personal Information, such as an IP address, previously indicated by a user. Most browsers allow you to control cookies, including whether or not to accept them and how to remove them. You may set most browsers to notify you if you receive a cookie, or you may choose to block cookies with your browser.
4.8. Mobile Device Data. We may collect limited information from your mobile device in order to provide the App. Such information may include your mobile device type, mobile device ID, and date and time stamps of App use. In addition, we may deploy tracking technologies within the App to help us gather aggregate statistics, but we will not use Personal Information for such purposes.
5. Publicly Available Information. Your Public Profile and any publicly available content that you post on or via the Services (“User Submissions”) may be publicly available to other users of the Services, and may also be accessed and used by people off the Services. The notices and tools that we provide on the Services should help inform you which information will be made publicly available. If you publish your contact information in any User Submissions or as part of your Public Profile, you may receive unsolicited messages from other users of the Services or the public. We therefore encourage you to only post information that you are sure you want to be accessible to anyone.
6. The Way We Use Personal Information. If you submit or we collect Personal Information through the Services, then we may use such Personal Information in the following ways:
6.1. We will use your Personal Information to provide and improve our Services, to contact you in connection with the Services and certain programs or offerings that you may have registered for, and to identify and authenticate your access to the parts of the Services that you are authorized to access.
6.2. We may use your designated email address to: (i) send you updates or news regarding the Services and our products; and/or (ii) respond to a “Contact Us” or administrative request (for example, need to change your password).
6.3. If you choose to send your friend an invitation email or message we will use the contact information that you provide, or make available, to automatically send your friend an invitation email or message. Your name and email address may be included in the invitation email or message.
6.6. We may disclose your Personal Information or any information you submitted via the Services if we have a good faith belief that disclosure of such information is helpful or reasonably necessary to: (i) comply with any applicable law, regulation, legal process or governmental request; (ii) enforce our Terms and EULA, including investigations of potential violations thereof; (iii) detect, prevent, or otherwise address fraud or security issues; or (iv) protect against harm to the rights, property or safety of TestM, our users, yourself or the public.
7. Use of Anonymous Information. We may use Anonymous Information (as defined below) or disclose it to third party service providers in order to improve our Services and enhance your experience with the Services. We may also disclose Anonymous Information (with or without compensation) to third parties, including advertisers and partners. “Anonymous Information” means information which does not enable identification of an individual user, such as aggregated information about the use of our Services.
8. Opting Out. You may choose not to receive future promotional, advertising, or other Services- related emails from us by selecting an unsubscribe link at the bottom of each email that we send. Please note that even if you opt out of receiving the foregoing emails, we may still send you a response to any “Contact Us” request as well as administrative emails (for example, in connection with a password reset request) that are necessary to facilitate your use of the Services.
9. Choice. At all times, you may choose whether or not to provide or disclose Personal Information. If you choose not to provide mandatory Personal Information, you may still visit parts of the Services but you may be unable to access certain options, programs, offers, and services that involve our interaction with you.
10. Access/Accuracy. To the extent that you do provide us with Personal Information, we wish to maintain accurate Personal Information. If you would like to delete or correct any of your Personal Information that we may be storing, you may use the tools that we make available on the Services or you may submit an access request by sending an email to [email protected] Your email should include adequate details of your request.
12. Children’s Privacy. The Services are not structured to attract children under the age of 13 years. Accordingly, we do not intend to collect Personal Information from anyone we know to be under 13 years. If we learn that we have collected Personal Information from a child under 13 years, we will delete that information as quickly as possible. If you believe that we might have any such information, please contact us at [email protected]
13. Security. The security of Personal Information is important to us. We follow generally accepted industry standards, including the use of appropriate administrative, physical and technical safeguards, to protect the Personal Information submitted to us. However, no method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security or confidentiality. If you have any questions about security on the Service, you can contact us at [email protected]
14. Merger, Sale or Bankruptcy. In the event that we are acquired by or merged with a third-party entity, or in the event of bankruptcy or a comparable event, we reserve the right to transfer or assign Personal Information in connection with the foregoing events.
Last updated: January , 2018