Terms of Service
Thank you for your interest in using the mabl Automated Testing Service (the “Service”).
The following Terms of Service (“TOS”) constitute a valid and binding agreement (“Agreement”) between mabl Inc., a Delaware corporation with principal offices at 141 Tremont St, Boston, MA 02111 (“mabl”); and the end user listed in the corresponding registration for the Service (the “Customer” or “you” or “your”). Please read these TOS carefully as they contain the legal terms and conditions that govern your use of, and access to, the Service (the “Terms of Service” or “TOS”). By establishing an Account (as defined below) or by using the Service you are agreeing to these TOS.
ARTICLE 1. Evaluation
1.1 Evaluation. You expressly acknowledge that mabl is conducting private testing of the Service and You hereby agree to participate in such testing. If You provide Feedback (as defined below), You agree that You will not receive any additional consideration or compensation, nor shall You retain any proprietary claim, as a result of Your evaluation of the Service.
ARTICLE 2. SERVICE AND RESTRICTIONS
2.1 Provision of Service. Subject to the terms and conditions of this Agreement and the Service
Plan you selected, mabl shall make the Service available to Customer solely for Customer’s internal business operations. 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. Customer shall provide mabl with all information, assistance and materials required for mabl to activate and operate the Service for Customer pursuant to this Agreement. Customer grants to mabl a non-exclusive license to use, reproduce, display and distribute such information and materials in connection herewith.
2.2 Access and Transmission of Data. A high speed Internet connection is required for proper
transmission of the Service. Customer is responsible for procuring and maintaining the network
connections that connect Customer’s network to the Service. mabl assumes no responsibility for the reliability or performance of any connections as described in this Article. Customer understands that the technical processing and transmission of electronic communications is fundamentally necessary for its use of the Service and that that these communications may be transferred unencrypted over a network. mabl is not responsible for any compromise of data transmitted across computer networks or tele-communications facilities (including but not limited to the Internet). mabl reserves the right at any time to modify or discontinue the Service with or without notice. If mabl modifies the Service, unless mabl provides otherwise, the then current TOS shall also apply to Your use of any modified or new version of the Service.
2.3 Security and Privacy Matters. mabl is committed to protecting the security of Customer’s electronic communications and data. We use a variety of administrative, physical and technical safeguards and procedures to help protect your electronic communications and data from unauthorized access, use or disclosure. For instance, in order to use the Service we require users to first complete a registration to establish an Account (as defined below). Further, access to each customer’s Account is restricted to Authorized Users (as defined below) of that customer. To use the Service, Authorized Users must first enter both a user ID and password to log into a corresponding customer Account. Despite these measures, mabl cannot fully eliminate security risks associated with your electronic communications and data. By using the Service, Customer consents and agrees to mabl’s collection, use, transmission and maintenance of certain information about Customer and Customer’s use of the Service for purposes of providing the Service to you. Information collected when you use the Service may include technical or diagnostic information related to your use that may also be used by mabl to maintain, improve and enhance the Service.
2.4 Accounts. Customer must establish an account (“Account”) for Customer’s employees or
independent contractors to use the Service on behalf of Customer (“Authorized Users”). Customer and all Authorized Users shall protect the confidentiality of all Account information, including user names and passwords. If the security of an Authorized User’s login information is breached, Customer shall immediately reset the Authorized User’s login information. Customer shall immediately notify mabl in the event that Customer or an Authorized User becomes aware of any violation of the terms of this Agreement. Customer shall be liable for any breach of this Agreement by an Authorized User.
2.5 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 the Service through any automated means, like scripts or web crawlers), 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 Customer 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.
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. 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, 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 Customer 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 7.6 of this Agreement, or by posting such notice of discontinuance on the user login page of the Service itself or on its website.
ARTICLE 4. CONFIDENTIAL INFORMATION AND IP RIGHTS
4.1 Confidential Information. You acknowledge that mabl considers the Service to be proprietary 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, Customer 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 is 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 aggregate or statistical data that does not contain any personally identifiable or Customer-specific information that is collected from the Customer in connection with Customer’s use of the Service. Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement; (ii) to protect the confidentiality thereof 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); and (iv) to only make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Article 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, that 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.
4.2 Exclusive Ownership. You acknowledge and agree that any and all intellectual property rights, including but not limited to copyrights, trademarks, trade secrets and patents, as well as know how (collectively, “IP”) contained in or relating to the Service are and shall remain the exclusive property of mabl and/or its licensors and nothing in this Agreement transfers any such IP Rights to you.
4.3 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 (”Feedback”). If You provide mabl with any Feedback as part of the evaluation of the Service, You agree that mabl may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback. You further agree that ownership of all IP in, or arising from, Feedback will be deemed to be assigned to mabl and will be the sole and exclusive property of mabl. At mabl’s request and expense, You will take reasonable actions to perfect mabl’s ownership of any such IP.
ARTICLE 5. TERM AND TERMINATION
5.1 Term. The term of this Agreement shall commence as of the date on which this Agreement is entered into by you establishing an Account or using the Service, and will remain in effect until
terminated by either party as set forth below.
5.2 Termination. Either party may terminate this Agreement with immediate effect at any time, with or without cause, by providing written notice to the other party. Upon termination of this Agreement You acknowledge and agree that all rights to use the Service shall immediately terminate.
5.3 Effects of Termination. Upon termination of this Agreement, you acknowledge and agree that
all rights to use the Service shall terminate and you will no longer have access to any electronic
communications and/or data that you published, posted, uploaded or otherwise transmitted to the Service.
ARTICLE 6. INDEMNIFICATION, DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
6.1 Indemnification. You agree to defend, indemnify and hold mabl, its affiliates, subsidiaries, 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: (a) any data You submit, post, transmit, or otherwise make available through the Service; (b) Your, or an Authorized User’s, use of the Service; (c) any violation by You of these TOS; or (d) Your violation of any rights of another.
6.2 No 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 EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, 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 THAT THE SERVICE IS A BETA VERSION AND HAS NOT BEEN TESTED IN THE PUBLIC MARKET AND THAT ANY ERRORS OR DEFECTS IN THE SERVICE MAY NOT BE CORRECTED. YOU FURTHER 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; (II) 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 MATERIALS AND THAT mabl SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTY MATERIALS; AND (III) 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 DATA USED, CREATED, RECEIVED, OR TRANSMITTED IN CONNECTION WITH THE EVALUATION OF THE SERVICE.
5.3 No Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT mabl AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, 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 mabl 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 YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE IS TO CEASE USE OF THE SERVICE.
ARTICLE 7. GENERAL PROVISIONS
7.1 Survival. Articles 2.5, 4, 6, and 7 shall survive termination or expiration of
7.2 Entire Agreement. The terms and conditions of this Agreement 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. 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 this Agreement 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.
7.3 Assignment. You agree not to assign this Agreement or any rights hereunder without
mabl’s prior written consent. mabl may assign this Agreement or any rights hereunder to any third party, without giving prior notice in its sole discretion.
7.4 Applicable Law. This Agreement 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. Any legal proceedings arising out of or relating to this Agreement will be subject to the
exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
7.5 Export Control. 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.
7.6 Notices and Contact. mabl may provide you with any notices regarding the Service and/or these TOS including changes, modifications to the Service, or the
termination of the Service or these TOS by email to you at the address in your registration for the Service or by postings on its website and/or the Service. You may provide notices to mabl by email at email@example.com
If you have any questions about the Service or these Terms of Service, please contact mabl at firstname.lastname@example.org
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT 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.