Early Access Terms of Service
Thank you for your interest in using the mabl Automated Testing Service (the “Service”). These Terms of Service (“TOS”) constitute a valid and binding agreement between mabl Inc., a Delaware corporation with principal offices at 141 Tremont St, Boston, MA 02111 (“mabl”); and the end user, or the entity represented by end-user, listed in the corresponding 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) or by using the Service you are agreeing to these TOS.
ARTICLE 1. EARLY ACCESS TO SERVICE
1.1 Evaluation. You expressly acknowledge that mabl is offering early access to the Service and you hereby agree to participate in such access. mabl will make the Service available to you without charge for a limited period (the “Free Early Access Period”) as determined by mabl in its sole discretion. You expressly acknowledge and agree that mabl may terminate the Free Early Access Period at any time, and that this Free Early Access Period will automatically expire (if not earlier terminated) upon the commercial release of the Service, with or without notice. Thereafter, if you sign up for any version of the Service that mabl then charges for and provide your payment information, your use of the Service will be subject to a separate agreement at that time.
ARTICLE 2. SERVICE AND RESTRICTIONS
2.1 Provision of Service. Subject to these TOS, mabl shall make the Service available to you solely for your internal business operations on a limited, 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. If mabl modifies the Service, unless mabl provides otherwise, these, or the then-current, TOS shall also apply to your use of any modified or new version of the Service.
2.2 Provision and Use of Your Data. You shall provide mabl with all Data (as defined below) and assistance required for mabl to activate and operate the Service for you pursuant to these TOS. Except to your Personal Data (as defined below in Article 2.4), 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 and prepare derivative works of Data in connection with providing the Service to you; 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 (as defined below in Article 2.5) 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.
2.3 Access and Transmission of Data. A high-speed Internet connection is required for proper transmission of 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.
2.5 Security Matters. mabl is committed to protecting the security of your 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 you to first complete a registration to establish an account (“Account”). Further, 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; and (b) you are solely responsible for any activity of Authorized Users and unauthorized users using your Account credentials to access or use the Service.
2.6 Accounts. You and all Authorized Users shall protect the confidentiality of all Account information, including names and passwords. 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 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.
2.7 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.
2.8 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 3. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
3.1 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 aggregate or statistical data that does not contain any personally identifiable or user-specific information that is collected in connection with 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 exercise its express rights under this Agreement; and (iii) 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). 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 3.1 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.
3.2 Exclusive Ownership. 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.
3.3 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.
ARTICLE 4. TERM AND TERMINATION
4.1 Term. The term of these TOS shall commence as of the date on which these TOS are entered into by you establishing an Account or using the Service, and will remain in effect during the Free Early Access Period unless earlier terminated by either party as set forth below.
4.2 Termination. Either party may terminate these TOS with immediate effect at any time, with or without cause, by providing written notice to the other party in accordance with the terms herein.
4.3 Effects of Termination. Upon termination of these TOS, 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 5. INDEMNIFICATION; AND DISCLAIMER OF WARRANTIES AND LIABILITIES
5.1 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 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 of these TOS; or (iv) your violation of any rights of another.
5.2 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 EXPRESS, 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 AN EARLY, NON-COMMERCIAL VERSION THAT 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 PRODUCTS OR SUCH THIRD PARTIES’ SERVICES AND THAT mabl SHALL NOT BE RESPONSIBLE FOR ANY FAILURES ATTRIBUTABLE TO SUCH THIRD PARTIES OR THIRD PARTY PRODUCTS; 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 AFFILIATED COMPANIES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, 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 BUSINESS INTERRUPTION, 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 OR RELATING TO THE SERVICE OR THESE TOS, INCLUDING, BUT NOT LIMITED TO: (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 6. GENERAL PROVISIONS
6.1 Survival. Articles 2.7, 2.8, 3, 4.3, 5, and 6 shall survive termination or expiration of these TOS.
6.2 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. 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.
6.3 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.
6.4 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. 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 and you hereby consent and submit to the personal jurisdiction of such courts. 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.
6.5 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 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 a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. You represent that you are not a Sanctions Target or prohibited from receiving the Service under Applicable Laws, including Export Laws.
6.6 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 Free Early Access Period, 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 firstname.lastname@example.org.
If you have any questions about the Free Early Access Period, the Service or these TOS, please contact mabl at email@example.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.