tos

Terms of Service

Thank you for your interest in using the mabl Automated Testing Service (the “Service”). These Terms of Service (“TOS” or “Agreement”) constitute a valid and binding agreement between mabl Inc., a Delaware corporation with principal offices at 141 Tremont St, 6th Floor, Boston, MA 02111 (“mabl”); and the end user, or the entity represented by the end-user, listed in the corresponding registration (the “Registration”) for the Service (“you” or “your”). You represent to mabl that you are lawfully able to enter into contracts, and if you are entering into these TOS on behalf of an entity, that you have the legal authority to bind that entity to these TOS. Please read these TOS carefully as they contain the legal terms and conditions that govern your use of, and access to, the Service. By establishing an Account (as defined below in Article 1.4) or by using the Service you are agreeing to these TOS.

ARTICLE 1. SERVICE AND RESTRICTIONS

1.1 Provision of Service. Subject to these TOS, mabl shall make the Service available to you during the Term (as defined in Article 6.1) solely for your internal business operations on a nonexclusive, and nontransferable basis. mabl may host the Service using its own infrastructure or it may engage a third party to host the Service, in whole or in part, on its behalf. mabl reserves the right at any time to modify or discontinue the Service with or without notice.

1.2 Access and Transmission of Data. A high-speed Internet connection is required for proper access to, and transmission of data via, the Service. You are responsible for procuring and maintaining the network connections that connect your network to the Service. mabl assumes no responsibility for the reliability or performance of any such connections. You understand that the technical processing and transmission of electronic communications is fundamentally necessary for use of the Service and that that these communications may be transferred unencrypted over a network and the Internet. mabl is not responsible for any compromise, degradation, interception, monitoring or any other loss or unauthorized access of data transmitted across computer networks or tele-communications facilities including the Internet.

1.3 Privacy Matters. To access and use the Service you and your Authorized Users must each access your Account for which Personal Data (as defined below in this Article) is required. You shall provide mabl with any Personal Data and assistance required for mabl to activate and operate the Service for you and your Authorized Users pursuant to these TOS. You shall ensure that all Personal Data is accurate and correct at all times during the Term. mabl reserves the right to disable an Account with a profile which it believes in its sole discretion is false or misleading. Mabl shall only use your Personal Data in accordance with the terms set forth in its Privacy Policy and applicable law. mabl’s Privacy Policy, available at www.mabl.com/privacy (the “Privacy Policy”), as may be updated from time to time, is hereby incorporated into these TOS, and you hereby agree to the collection, use, and disclosure practices set forth therein in connection with your use of the Service. “Personal Data” means identifying information relating to you or an Authorized User, such as name or email address, furnished by you or Authorized Users in connection with access and use of the Service. You acknowledge and agree that except for Personal Data furnished by you or your Authorized Users solely to access and use the Service, the Service is not intended for use by you or any Authorized User to transfer, process, use or store information relating to an identified or identifiable natural person, and you agree not to use the Service for such purpose. You further represent and agree that you shall not include in Personal Data or Data (as defined in Article 5.4) any “sensitive personal information” such as driver's license, Social Security or financial account numbers; payment card cardholder data; protected health information; or any other such information that: (i) must be protected in accordance with specific or heightened security requirements imposed by applicable state, federal or international law or regulation, or industry standards; or (ii) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure; or (iii) reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, sex orientation or activities, or genetic or biometric data.

1.4 Security Matters. mabl is committed to protecting the security of your Data and Personal Data in accordance with industry standards, and applicable law or regulations. We use a variety of administrative, physical and technical safeguards and procedures to help protect such data from accidental loss, and unauthorized access, use or disclosure including encrypting all transmissions of Data and Personal Data using secure socket layer technology. Further, in order to use the Service we require you to first complete a registration to establish an account (“Account”), and access to your Account is restricted to only those employees or contractors that you add to your Account as authorized users (“Authorized Users”). To use the Service, you or your Authorized Users must first enter both an email and password to log into your Account. However, despite the foregoing measures, you acknowledge and agree that: (a) no security measures are 100% effective, and that mabl cannot guarantee that Account credentials and other information will not be intercepted when transmitted over the internet; (b) you are solely responsible for any activity of Authorized Users and unauthorized users using your Account credentials to access or use the Service; and (c) subject to mabl's compliance with the terms of this Article and its Privacy Policy, you are solely responsible for ensuring the security and confidentiality of all Data and Personal Data.

1.5 Accounts. You and all Authorized Users shall protect the confidentiality of all Account information, including names and passwords to prevent unauthorized access or use of the Service. If the security of your or an Authorized User’s login information is breached, you shall immediately reset your or the Authorized User’s login information. You shall immediately notify mabl in the event that you or an Authorized User becomes aware of any unauthorized access to any security credentials, or other Personal Data or Confidential Information, or any violation of the terms of these TOS. You shall ensure that Authorized Users are aware of the foregoing, and shall be liable for any breach of these TOS by an Authorized User. Without limiting the foregoing, you represent and agree that (i) you have all rights in Data and Personal Data required for the parties to perform their respective obligations under this Agreement including having provided all applicable notices, and received all applicable consents; and (ii) you shall be solely responsible for ensuring that the use of Data and Personal Data that you or Authorized Users post, send or otherwise make available using the Service complies with all applicable laws and any other applicable legal or contractual restrictions.

1.6 Restrictions. You shall only use the Service for your own internal use. You will not transfer, sell, assign, rent, lease, distribute and/or make available through timesharing or through managed services the Service, in whole or in part. You may not, and may not permit any Authorized Users or third party to: (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service; (ii) use, evaluate or view the Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Service or that is otherwise competitive with the Service; (iii) use the Service in violation of these TOS; (iv) use the Service to violate any law or regulation; (v) remove, obscure or alter any copyright notice, logo, trademark, trade name or other proprietary rights notice contained within the Service; (vi) interfere with or disrupt the Service (including accessing or gathering information from the Service through any automated means, like scripts or web crawlers, or data scraping, or bypassing any robot exclusion measures), any servers or networks connected to the Service or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon); or (vii) publish, post, upload or otherwise transmit to the Service any of your data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another. Except for the express rights granted herein, mabl does not grant any other rights, whether express or implied, to services, software or other intellectual property.

1.7 Third Party Services and Modifications. The Service may include features or functionality that interoperate with online services operated by third parties (“Third-Party Services”). You acknowledge and agree that (i) you are responsible for complying with any license and other terms applicable to the Third Party Services, (ii) mabl does not control and is not responsible for any Third Party Services, and (iii) mabl has no liability with respect to any use of Third Party Services.

ARTICLE 2. FEES, AND BILLING AND PAYMENT

2.1 Fees. You shall pay mabl for use of the Service in accordance with mabl’s then current published rates, terms and policies available at www.mabl.com/pricing, which are incorporated by reference into these TOS.

2.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes ("Taxes"). You are responsible for paying all Taxes other than any taxes on mabl’s income. If mabl has the legal obligation to pay or collect Taxes for which you are responsible under this Article, the appropriate amount shall be invoiced to and paid by you unless you provide mabl with a valid tax exemption certificate authorized by the appropriate taxing authority.

2.3 Billing and Payment. mabl will invoice you monthly in arrears during the Term for the amount of the subscription fee incurred by you in the previous month for use of the Service as determined under the then applicable pricing for the Service. You agree to pay all amounts due in U.S. dollars within fifteen (15) days of the date of the applicable invoice, except for amounts reasonably and in good faith disputed; provided that you notify mabl of any such dispute in writing prior to the date such amounts would otherwise be due, and that you cooperate with mabl to promptly resolve such dispute. Invoices may be paid either by Electronic Fund Transfer (“EFT”) methods then currently supported by mabl, or check. mabl uses a third-party to process applicable EFT payments. The first time you pay for the Service by EFT, you are (i) authorizing mabl and its third party payment processors to process such payment, and any future payments, as electronic drafts from your designated account (in the case of Automated Clearing House or debit card payments), or as charges to your designated account (in the case of credit card payments), for the monthly subscription fee for the Service on the date of the issuance of the invoice unless otherwise agreed in writing; (ii) agreeing to keep all account and related information up to date including your email address so that mabl can complete your transactions and contact you as needed in connection with your transactions; and (iii) representing that you are authorized to use such EFT payment method, and that any payment information you provide is true and accurate.

2.4 Late Payments. Except for amounts reasonably disputed in good faith, any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law. Should you not pay any undisputed amount when due, mabl may (at its discretion and in addition to other remedies it may have) suspend your access to the Service. You agree to reimburse mabl for any costs or expenses incurred by mabl related to (i) your payments including any return, rejection or insufficient funds or credit fees, and/or (ii) collection of any undisputed amount that is not paid when due including reasonable attorneys’ fees. Email notice from mabl’s third-party payment processor declining your EFT payment or otherwise relating to your account shall be deemed notice from mabl under these TOS.

ARTICLE 3. MODIFICATIONS; DISCONTINUATION OF SERVICE

3.1 To Terms of Service. mabl reserves the right to update and change these TOS from time to time by posting an updated version of such TOS on its website at www.mabl.com/tos no later than thirty (30) days prior to the posted effective date of such update. If you continue to use or access the Service after the posted effective date, you hereby agree to the updated Terms of Service.

3.2 To the Service. mabl reserves the right at any time to make modifications to the Service with or without notice. Unless mabl provides otherwise, these, or the then-current Terms of Service shall also apply to your use of any modified or new version of the Service; or your use of any updates, upgrades, changes, enhancements or new features added to the Service, that may be made available by mabl to you from time-to-time. mabl also reserves the right to discontinue offering the Service upon thirty (30) days advance notice of such discontinuance by providing notice to you in accordance with Article 8.8 of this Agreement, or by posting such notice of discontinuance on the user login page of the Service itself or on its website at www.mabl.com/tos.

3.3 To Prices. Prices are subject to change at any time by providing notice to you in accordance with Article 8.8 of this Agreement by publishing an updated price list on mabl’s website at www.mabl.com/pricing. If you do not agree to such pricing change, you may cancel your Account. By continuing to use the Service after the effective date of such pricing change, you hereby agree to such pricing change. Unless otherwise stated in a notice, the effective date of such price change shall be the date of such notice.

ARTICLE 4. CONFIDENTIAL INFORMATION

4.1 Confidential Information. You acknowledge that the Service is the proprietary and confidential information of mabl, and agree not to disclose any Confidential Information about the Service without the prior written consent of mabl. For purposes of this Agreement, “Confidential Information” shall include, without limitation, Data, each party’s proprietary technology, financial information, customer information, business processes and technical product information; communications between the parties regarding the Service; and any information that is clearly identified in writing at the time of disclosure as confidential or is of such a nature, or has been disclosed in such a way, that it should be obvious to the receiving party that it is confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known publicly or becomes known publicly without fault of the receiving party; (ii) is already known by the receiving party before disclosure to it by the other party and not subject to an obligation of confidentiality; (iii) the receiving party becomes aware of from a third party not bound by nondisclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; (iv) is independently developed by the receiving party without any use of the confidential information; or (v) is Aggregated Data (as defined below in Article 5.5), or other statistical data that does not contain any personally identifiable or user-specific information that is collected in connection with use of the Service.

4.2 Confidentiality Obligations. Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to exercise its express rights under this Agreement; and (iii) to protect the confidentiality of Confidential Information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a commercially reasonable degree of care in the protection of such Confidential Information). Notwithstanding the foregoing, nothing herein will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. The failure of the receiving party to comply with the provisions of this Article 4 would result in irreparable harm to the disclosing party and, therefore, in addition to any other remedies that may be available to the disclosing party, the disclosing party shall have the right to an immediate injunction enjoining such breach.

ARTICLE 5. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSE RIGHTS

5.1 mabl Materials. As between you and mabl, mabl owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, and all usage and other data generated or collected in connection with the use thereof other than Data (the “mabl Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the mabl Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the mabl Materials.

5.2 Data. As between you and mabl, subject to the rights granted to mabl under this Agreement, you own all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to Data.

5.3 Feedback. Feedback consists of any of your suggestions, comments, observations or other feedback relating to the Service through any means (e.g., completion of a Survey, telephonically, email) including, without limitation, (i) on all errors and problems encountered (including the procedures and tests used to discover, diagnose and recover from such errors or problems) during your use of the Service; and (ii) on the operation of the Service, its functionality, performance, deficiencies and limitations, along with any recommendations or suggestions you may have for enhancements, improvements, additional features or functionality, or any other modifications to the Service (collectively, ”Feedback”). If you provide mabl with any Feedback, you agree that mabl may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback. You further agree that ownership of all intellectual property rights in, or arising from, Feedback will be deemed to be assigned, and are hereby assigned, to mabl and will be the sole and exclusive property of mabl. If you provide Feedback, you agree that you will not receive any additional consideration or compensation.

5.4 Use of Data. During the Term (as defined below in Article 6.1) you hereby grant to mabl a worldwide, non-exclusive, fully paid-up, royalty-free, sub-licenseable and transferable license to use, reproduce, display, distribute, transmit and store Data (as defined below in this Article) in connection with providing and supporting the Service to you and any Authorized User (as defined in Article 1.4); and subject to the confidentiality obligations herein, to develop, improve, evaluate and market mabl’s products and services. “Data” means the data, content, information and other material that you or any Authorized User upload to the Service; cause to interface with the Service; run, use or store on the Service; or otherwise transfer or process in connection with the Service, other than Personal Data (as defined in Article 1.3). Upon expiration or termination of these TOS and receipt of your written notification within thirty (30) days of the date of such event support@mabl.com instructing mabl to delete all Data, mabl shall promptly thereafter remove Data from the Service and any other mabl systems that Data is stored on, and, as applicable, instruct any third party service providers with Data to do the same; unless Data is required to be retained pursuant to a court order, or may be relevant to litigation reasonably anticipated by mabl.

5.5 Use of Aggregated Data. Further, you hereby grant to mabl a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, distribute, transmit, store, prepare derivative works of, and to otherwise exploit statistical, and other aggregated, summarized or combined data derived, in part, from your and/or an Authorized User’s use of the Service (“Aggregated Data”) for mabl’s business purposes, including, without limitation, to maintain, develop, improve, evaluate and market mabl’s products and services. Aggregated Data does not include your Confidential Information, Personal Data, nor information identifying any identifiable individual.

ARTICLE 6. TERM AND TERMINATION

6.1 Term. The initial term shall commence on the date that this Agreement is entered into by you establishing an Account, or using the Service, and shall continue through the last day of the applicable period set forth in the Registration. Upon expiration of the initial term, this Agreement will automatically renew for successive renewal terms each of the same duration as the initial term, unless and until either party gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You may provide notice of non-renewal to mabl at support@mabl.com. The initial term and any renewal term are defined herein collectively as the “Term.”

6.2 Termination. In addition to non-renewal, either party may terminate these TOS with immediate effect at any time during either the initial term or a renewal term, with or without cause, by providing written notice to the other party. You may provide notice of termination of this Agreement to mabl at support@mabl.com.

6.3 Effects of Termination. Upon termination of these TOS, you acknowledge and agree that (i) you will pay mabl any fees or other amounts that accrued prior to the effective date of termination, any and all liabilities accrued prior to the effective date of termination will survive termination, and (ii) all rights to use the Service shall terminate and you will no longer have access to any tests, test results, electronic communications and/or data that you published, posted, uploaded or otherwise transmitted to the Service. All provisions of this Agreement that, by their nature, are intended to survive termination including this Article 6.3 and those related to Restrictions (Article 1.6), Confidential Information (Article 4), IP Ownership (Articles 5.1, 5.2 and 5.3), License Rights to Aggregated Data (Article 5.5), Indemnification, Disclaimers, and Limitations (Article 7), and General Provisions (Article 8), will survive and remain in full force and effect.

ARTICLE 7. INDEMNIFICATION; DISCLAIMERS; AND LIMITATIONS

7.1 Indemnification. You agree to defend, indemnify and hold mabl and its affiliated companies, and each of their directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (i) any data or electronic communications you or Authorized Users submit, post, transmit, or otherwise make available to or through the Service; (ii) your, or an Authorized User’s, use (or misuse) of the Service; (iii) any violation by you or an Authorized User of these TOS; or (iv) your, or an Authorized User’s, violation of any rights of another.

7.2 Disclaimer of Warranties. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES AND mabl DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SERVICE EITHER EXPRESS, IMPLIED (BY FACT OR OPERATION OF LAW) OR STATUTORY. mabl EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR USE OR A PARTICULAR PURPOSE. mabl FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE OR ERROR FREE. YOU ACKNOWLEDGE AND AGREE (I) THAT THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICE REMAINS WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF DATA, MATERIALS OR OTHER INFORMATION TRANSMITTED OR ACCESSED VIA THE SERVICE; (II) THAT mabl MAKES NO WARRANTIES THAT THE SERVICE NOR THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING, BUT NOT LIMITED TO, THE INTERNET, OTHER TRANSMISSION NETWORKS, YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SERVERS, COMPUTERS OR OTHER DEVICES THAT RESULTS FROM THE USE OF THE SERVICE; (III) THAT mabl USES, OR MAY USE, THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING AND RELATED TECHNOLOGY REQUIRED TO RUN THE SERVICE AND THAT mabl ALSO MAKES NO WARRANTIES WITH RESPECT TO SUCH THIRD PARTY PRODUCTS OR SUCH THIRD PARTY SERVICES AND THAT mabl SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTIES OR THIRD PARTY PRODUCTS; AND (IV) THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY ELECTRONIC COMMUNICATIONS OR DATA USED, CREATED, RECEIVED, OR TRANSMITTED IN CONNECTION WITH THE USE OF THE SERVICE.

7.3 Disclaimer of Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS; OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR BREACH OF YOUR PAYMENT OBLIGATIONS TO mabl UNDER THIS AGREEMENT; OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL BE LIABLE TO THE OTHER PARTY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE; (II) ANY CHANGES MADE TO THE SERVICE, OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF ELECTRONIC COMMUNICATIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE ELECTRONIC COMMUNICATIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND/OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE OR ARISING UNDER THIS AGREEMENT.

7.4 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS; 0R VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR BREACH OF YOUR PAYMENT OBLIGATIONS TO mabl UNDER THIS AGREEMENT; OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO mabl UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

7.5 Risk Allocation and State Prohibitions. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A DISCLAIMER OF WARRANTY OR LIABILITY, OR LIMITATION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY mabl TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS ARTICLE 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ANY STATE WHERE SUCH DISCLAIMERS OF IMPLIED WARRANTIES AND/OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES DO NOT APPLY, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

ARTICLE 8. GENERAL PROVISIONS

8.1 Relationship or Parties. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party.

8.2 Entire Agreement. The terms and conditions of these TOS constitute the entire agreement between you and mabl with respect to your use of the Service and supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter including expressly the Early Access Terms of Service if you previously entered into them. You may also be subject to additional terms and conditions that may apply if you use third-party content, services or software with the Service. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of these TOS shall nonetheless remain in full force and effect. The failure of mabl at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same.

8.3 Assignment. You agree not to assign these TOS or any rights hereunder without mabl’s prior written consent. mabl may assign these TOS or any rights hereunder to any third party, without giving prior notice in its sole discretion.

8.4 Applicable Law. These TOS shall be governed by and construed in accordance with the Laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Suffolk County, Massachusetts in connection with any action arising out of or in connection with this Agreement. These TOS shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

8.5 Force Majeure. mabl shall have no liability to you, Authorized Users or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including without limitation acts of God or nature such as fires or floods, strikes, civil disturbances or terrorism or interruptions in power, communications, satellites, the Internet or any other network that are beyond mabl’s reasonable control.

8.6 Export Control/Governmental Users. Use of the Service (or software provided by mabl to you in connection with the Service, if any) including transferring, posting or uploading data via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations including, without limitation, Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”); and not directly or indirectly export, re-export or otherwise deliver the Service to any Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Law. You represent that you are not a Sanctions Target or prohibited from receiving the Service under Applicable Laws, including Export Laws. The Service is provided to the U.S. Government as a “commercial item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. If you or any Authorized User is using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, you and your Authorized Users must immediately discontinue use of the Service.

8.7 Publicity. You agree that mabl may publicly disclose that it is providing the Service to you and may use your name and logo to identify you as a customer in promotional and marketing materials, including press releases.

8.8 Notices and Contact. mabl may provide you with any notices regarding the Service and/or these TOS including changes in prices, modifications to the Service, or the termination of the Service or these TOS, by email to you at the address in the Registration for the Service or by postings on its website and/or the Service. Except as otherwise specified herein, you may provide notices to mabl by email at inquiry@mabl.com.

If you have any questions about the Service or these TOS, please contact mabl at inquiry@mabl.com.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TOS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY ESTABLISHING AN ACCOUNT AND/OR USING THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE FOREGOING TERMS AND CONDITIONS AND GRANT TO mabl THE RIGHTS SET FORTH HEREIN.