Effective Date: May 1, 2021
By accessing or using the TestBox services, you are agreeing to the terms and conditions listed here. If you are using the TestBox services as an employee, agent, contractor or affiliate of a corporation or similar entity, then you acknowledge that you have the authority to sign for and bind such entity in order to accept the terms of this agreement.
These terms and conditions (the “Terms”) are entered into between Testbox Inc., a Delaware corporation (“TestBox” or “we”) and the person or entity accessing the TestBox services (“User” or “you”). In consideration for the Terms, the parties agree as follows:
Provision of TestBox Services: TestBox will make the TestBox services and software available to you per these Terms and any other Supplemental Terms that may be applicable. During the Term, TestBox grants you a limited, non-exclusive right to access and use the TestBox services only for internal business purposes and for the number and name of users approved by TestBox.
Your Responsibilities as a User:
- Secure your Account credentials: You may need to register for an Account in order to receive access to the TestBox services and/or place orders. You agree to keep your Account information current, accurate and complete so that TestBox can send notices, statements, and relevant information to you via email or through your Account. As a User, it is your responsibility to maintain the confidentiality of User login information and credentials for the Account that enable you to access the TestBox services. Please notify TestBox if you believe your login credentials have been compromised.
- Abide by our approved uses: By accessing the TestBox services you agree not to use the TestBox technology to: (i) process data on behalf of any third party other than your own Users and End Users, (ii) engage in unlawful conduct, including but not limited to violation of any person’s privacy or publicity rights; (iii) store or transmit any content that infringes upon any this party’s intellectual property rights; (iv) interfere with or disrupt the integrity or performance of the TestBox services, or (v) post, transmit, upload, send, or store content that is unlawful, racist, hateful, abusive, obscene or discriminatory. Additionally, by using the TestBox services you agree you will not (vii) license, sublicense, sell, resell, transfer, assign or otherwise commercially exploit or make the TestBox Technology available to any third party other than the Users and End Users, and even then, only in furtherance of permitted business purposes under these Terms, (viii) modify, adapt or hack the TestBox Technology or otherwise gain unauthorized access to the TestBox Technology or its related systems and networks; (ix) decompile or reverse engineer, disassemble, reproduce, copy or otherwise access or discover the source code or underlying program of any portion of the TestBox Technology. Remember, it’s your responsibility to make sure your use of the TestBox services and the TestBox Technology is compliant with applicable laws and regulations.
More About Customer Data:
- Use of Customer Data: You as a User retain all right, title and interest in and to Customer Data, including any modifications made to it in the course of using the TestBox Technology. You hereby grant to TestBox and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the TestBox services and perform all related obligations TestBox agrees to under these Terms, or as required by law. You warrant that you have and will have sufficient rights in the Customer Data to grant these rights to TestBox under these Terms, or as required by law. You agree and acknowledge that you are responsible for the accuracy, content and legality of all Customer Data. You agree not to upload any Customer Data containing electronic patient health records and information (“PHI”) unless you have entered into a business associate agreement (“BAA”) with TestBox, which will govern the parties’ respective obligations with respect to any PHI uploaded by User to use the TestBox services (and which will be incorporated into these Terms once mutually executed). You may inquire about a BAA by emailing email@example.com. If you are permitted to submit PHI data you may do so only by uploading it as Customer Data per the instructions of TestBox. TestBox will have no liability under these Terms for PHI supplied by a User or End User notwithstanding anything to the contrary. You agree you will not upload credit cardholder data to the TestBox service unless entering into a written agreement allowing it.
- Ownership: Customer Data is considered Confidential Information under these Terms. User will retain all right, title and interest in and to the Customer Data and all User Confidential Information; TestBox obtains no rights to these except as expressly granted in these Terms and any Supplemental Terms. TestBox and its licensors retain all right, title and interest in and to the TestBox Technology. User acknowledges that the TestBox services are offered as online, hosted solutions integrated to other Tools, and that User has no right to obtain a copy of the underlying computer code for anf of the TestBox services or services provided through use of other Tools (the one exception: if the TestBox services ever include downloadable software, then you can obtain a copy in object code format). TestBox may freely use and incorporate into TestBox’s products and services any suggestions, enhancement requests, recommendations, corrections or other feedback provided by User or by any of its Users or End Users relating to TestBox’s products or services. Feedback and any other suggestions are provided by Users and End Users exclusively “AS IS” and will not be used by TestBox in any way that identifies or permits identification of User or its Affiliates or End Users.
- Usage: TestBox can collect and use Usage Data to develop, improve, support and operate its products and services. “Usage Data” includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support and/or about User’s use of the TestBox services. TestBox will not share Usage Data that includes User’s Confidential Information with a third party except (i) as required to perform the TestBox services and integrate with the Tools intended to be tested by User; (ii) in accordance with the Confidentiality section of these Terms, or (iii) to the extent the Usage Data is aggregated and anonymized such that Users and End Users cannot be identified. TestBox may use feedback and Users (or End Users) data to provide User reports on User’s usage/implementation of the TestBox services or for TestBox product development.
- Updates: TestBox may update its TestBox services, software offerings and Tools from time to time and User may receive notification of these updates. Any updates to the TestBox services are subject to these Terms and any applicable Supplemental Terms. You agree that any purchase of the TestBox services is not contingent on any future features, nor dependent on any comments by TestBox regarding potential or planned future features.
- Use of Other Tools: Use of the TestBox services is dependent upon use of certain other Tools with which TestBox provides integration and support to. You acknowledge that the purpose of the TestBox services is to run Customer Data through and test certain of the Tools, and that TestBox and/or User (including End Users) may be subject to additional terms and conditions associated with the Tools. By enabling access to these third-party Tools, User understands that TestBox is not responsible for nor providing warranties on the use of such Tools, including current or future features provided through the Tools. To the extent there is damage or loss caused or alleged to be caused by use of the Tools and technology or processes associated with the Tools, TestBox is not liable for any such damage or loss. You understand and acknowledge that TestBox is not responsible for providing technical support for the tools, nor for data hosting and data transfer practices followed by the Tools themselves. TestBox represents and warrants that it is and will maintain compliance with applicable terms and conditions for use of the Tools by TestBox and the User.
Fees and Payment:
- Fees and Payment: TestBox offers free access to Tools for Users to trial use of Customer Data in such Tools. The primary services that TestBox provides are free of charge. Any charges associated with your account, if any, are set forth on your Account. Any fees due, if any, are payable within 30 days on “Net 30” terms unless stated otherwise. Payment obligations, if any, are non-cancelable and non-refundable regardless of utilization, except as expressly allowed under these Terms. Fees must be paid in an acceptable form as approved by TestBox. TestBox reserves the right to request additional documentation from User in order to facilitate payment in compliance with applicable rules and regulations.
- Payment Disputes: If fees due are more than thirty (30) days overdue, then TestBox will provide written notification and reserves the right to suspect User access to the TestBox services (including User Account) until resolved. If a User disputes applicable charges reasonably and in good faith, and cooperates diligently towards resolve, TestBox will not invoke any other rights provided for in these Terms. If such a dispute is not resolved within an additional thirty (30) day period, each party will have the right to seek remedies available to it under these Terms, in law, or equity.
- Taxes: The fees charged do not include any taxes, levies, duties or similar government assessments, including value-added, sales, use or withholding taxes assessed by applicable authority (collectively, “Taxes”). User agrees to pay applicable Taxes associated with purchases from TestBox unless such Taxes have otherwise been invoiced by and paid to TestBox. Affiliate Purchases: User’s Affiliates may purchase TestBox services directly from TestBox by executing an Order Form (if any) or accepting terms presented in the relevant Affiliate Account. This will be deemed a separate agreement with TestBox and may include modifications as local law requires.
Term and Termination:
- Term: These Terms are effective as of the Effective Date. For Users signing up directly online, the Effective Date will be the date of signup on the website or entry of User information to activate an Account. For Users purchasing directly through TestBox, the Effective Date will be the date of a mutually executed agreement (if any).
- Renewals: Unless a party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the relevant Subscription Term, the TestBox services will automatically renew for a period equal to the previous Subscription Term (or one year, whichever is shorter). TestBox reserves the right to increase fees by providing notice to you prior to renewal.
- Suspension: TestBox may suspect your Account and/or access to the TestBox services for any of the following grounds: (i) late payment or non-payment of undisputed feeds, (ii) non-renewal of the TestBox services by User; (iii) if User or End User’s use of the TestBox services breaches any terms of this Agreement (and such breach is not cured following notice by TestBox within thirty (30) days, provided such breach, in TestBox’s sole determination, can be cured). Once any issues are resolved, the Account and use of the TestBox services will be restored. Any suspension does not absolve parties from other obligations in these Terms and any Supplemental Terms.
- Termination: Either party may terminate these Terms by written notice to the other party in the event that (i) there is a material breach of these Terms and such breach is not cured within thirty (30) days following notice, provided such breach can be cured; or (ii) immediately in the event that the other party becomes subject to bankruptcy proceedings or equivalent.
- Users Accessing Tools: Once your free trial of a Tool expires, TestBox and/or the Tool may immediately suspend access to Accounts and/or the TestBox services. User acknowledges that it is User’s responsibility to export any Customer Data before the end of the free trial period in order to retain Customer Data, as TestBox will have no obligation to continue maintaining, storing or retaining Customer Data (through TestBox or through the Tools) beyond the end of the free trial period. Data Export: Upon termination or expiration of these Terms, User access to the TestBox services will terminate. TestBox works proactively with you to ensure a smooth transition. However, TestBox strongly recommends that you export or otherwise retain all Customer Data before closing an Account.
Confidentiality: Each party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Unless otherwise noted, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and responsibilities under these Terms, and will disclose Confidential Information solely to those employees and agents who need to know and who are bound by obligations to maintain the confidentiality and not misuse the Confidential Information. These provisions will supersede any non-disclosure agreement among the parties entered into prior to the Effective Date of these Terms. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in an effort to obtain confidential treatment of the Confidential Information. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be sufficient remedy, and therefore any disclosure will result in the disclosing will be entitled to seek appropriate equitable relief in addition to any other remedies.
- Service Warranty: TestBox warrants that the TestBox services will perform in all material respects in accordance with the Documentation. Upon any notice from you to the contrary, TestBox will use diligent efforts to correct the TestBox services in pursuit of this warrant. If TestBox is unable to make corrections in a timely manner, either party may terminate the engagement. You may, as a sole and exclusive final remedy, may be entitled to receive a full refund of any unused Fees as of such date. This warranty may be inapplicable if the error or non-conformance is (i) caused by a failure of the Tools and/or (ii) caused by User’s breach of these Terms or of a User or End User’s misuse of the TestBox services.
- Malware Warranty: TestBox warrants that the TestBox services hosted by TestBox will be monitored using commercially available means to attempt and prevent the introduction of any computer instructions, circuitry, or other technology means whose purpose or effect is to disrupt, damage, or interfere with the authorized use of TestBox services by User, including but not limited to code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices, or similar destructive or harmful code that self-replicates (collectively, “Malicious Software”). Any similar warranties regarding the Tools will be made solely (if made at all) by the underlying partner responsible for each applicable Tool.
- Disclaimer on Warranty: Except as expressly set forth in these Terms, neither party makes any other warranties, express or implied, statutory or otherwise, and all such warranties are hereby disclaimed, including but not limited to warranties of merchantability, title, fitness for a particular purposes, or non-infringement.
Liability and Indemnification:
SUBJECT TO APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY, OR OTHER THEORY.
EXCEPT FOR DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THESE TERMS WILL NOT EXCEED THE FEES PAID OR PAYABLE TO THIRD PARTY TOOLS FACILITATED BY TESTBOX IN THE TWELVE MONTHS PROCEEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).
IN THE CASE OF IP CLAIMS AND DATA CLAIMS, TESTBOX AND ITS AFFILIATES’ TOTAL LIABILITY TO USER AND ITS AFFILIATES FOR ALL SUCH CLAIMS WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (THE “SUPERCAP”).
IN NO EVENT WILL EITHER PARTY OR THEIR AFFILIATES BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. THE CAPS WILL NOT BE CUMULATIVE; THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
THE PARTIES AGREE THAT THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HERE IS FOUND TO HAVE FAILED ITS PURPOSE.
Indemnification: TestBox will defend User and its Affiliates from any third party claim alleging that User’s use of the TestBox Technology infringes a third party’s patent, copyright and/or trademark rights (“IP Claim”) and will indemnify and hold harmless User and its Affiliates from and against any damages and costs awarded against User or its Affiliates. TestBox will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of TestBox Technology by User, its Affiliates or End Users, (ii) modification of TestBox Technology by anyone other than TestBox or its representatives, (iii) or the combination, operation of use of TestBox Technology with other data, hardware or software not provided by TestBox. In the event of a real or potential IP Claim, TestBox at its own option and expense may procure a right for User’s continued non-infringing usage, replace or modify the TestBox services to make them non-infringing, and/or allow for User to terminate the TestBox services with a pro-rata refund of unused fees. User will defend TestBox and its Affiliates from any third-party claim (“Claim”) and will indemnify and hold harmless TestBox and its Affiliates from and against any damages and costs awarded against TestBox and its Affiliates, or agreed in settlement, to the extent caused by (iv) modification of the TestBox services by Users and their Affiliates, Users and End Users, (v) User’s or Affiliate’s unauthorized supply, disclosure or processing of Customer Data, (vi) User’s or Affiliate’s violation of laws applicable to User and Affiliate business, and (vii) any dispute between User and/or its Affiliate, User or End User pertaining to User commercial offerings. User will have no liability or obligation with respect to any Claim if such claim is based whole or part on (a) TestBox’s breach of these Terms or Supplemental Terms, or applicable law or (b) acts or omissions leading to TestBox’s obligation to indemnify User and its Affiliates pursuant to the above. In the event of indemnity obligations under this section, the indemnified party will: (1) promptly notify the indemnifying party, (2) allow the indemnifying party the right to control the investigation, defense and settlement of such claim at the indemnifying party’s sole cost and expense, and (3) upon request of the indemnifying party, provide all necessary cooperation. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve obligations, though the indemnifying party will not be liable for any litigation or other expenses incurred prior to the date of notice. The indemnifying party will not settle any claim that would bind the indemnified party to any obligation (other than ceasing use of infringing materials) or require admission of fault without first obtaining the indemnified party’s written consent (which shall not be unreasonably withheld).
- Third parties: Following the period of your free trial, if you choose to make a purchase we may use a third-party service to conduct payment processing.
- Assignment: Please reach out to us to obtain our consent prior to assigning this agreement to any other party; we will do the same for you. This section does not apply in connection with a merger, acquisition, corporate reorganization, or sale of substantially all assets.
- Relationship of Parties: This is a Provider-User relationship, and parties are independent contractors to each other, and these Terms do not create a joint venture, fiduciary or other employment relationship. TestBox may identify you as a User in promotional materials. You may always request that we stop doing so by emailing us at firstname.lastname@example.org.
- Survival: Some sections of these Terms will survive after termination after your use of the TestBox services stop. The terms that will survive pertain to: use restrictions, intellectual property, fees and payment (if applicable), term and termination, confidentiality, service warranties, liability and indemnification, entire agreement, survival, notices, governing law, disputes and definitions. Terminating these Terms will not limit either parties’ liability for obligations accrued up to the termination or breach date.
- Notices: Notices to either party should be sent by a nationally recognized delivery service using US mail to the mailing address provided on TestBox’s website or in User’s account. Of course we always prefer email, and notice will be deemed to be given immediately via email. You can email TestBox at email@example.com and we can email you at the email address listed in your Account.
- Governing Law: This agreement is governed by the laws of the state of Colorado without regard to conflict of laws principles, and the parties agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Colorado, County of Boulder.
- Disputes: Any dispute or claim arising out of these Terms (including breach, termination, and/or interpretation) will be determined by arbitration in Denver, Colorado (or other location only if jointly agreed to by the parties). The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on any award may be entered in any court having jurisdiction. This section does not preclude parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.
- Export Restrictions: The TestBox services and components of the TestBox Technology which TestBox provides to Users may be subject to certain export control and sanctions rules, regulations and laws, including but not limited to those under the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). You as a User agree to comply with all Export Control Laws as they relate to the use of the TestBox services and TestBox Technology, including by (but not limited to) avoiding accessing or sharing with a government agency the TestBox services and TestBox Technology from or with jurisdictions prohibited by U.S. or other relevant authorities (which for U.S. prohibited jurisdictions currently includes Crimea, Cuba, Iran, North Korea, and Syria).
- Modifications: From time to time TestBox may modify these Terms. Unless otherwise specified by TestBox, changes will become effective upon renewal of then-current Subscription Term or entry into new Order Form (if any) or acceptance of new terms through the Account. TestBox will use reasonable efforts to notify Users of any changes, through the Account, User email on file, or other means.
- “Account” means any accounts or instances created by or on behalf of User for access to and use of any of the TestBox services.
- “Affiliate" means, with respect to a party to these Terms, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
- “Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which is not marked but which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- “Customer Data” means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the TestBox services by User or its Users through User’s Account in connection with User’s use of the Services.
- “Data Claims” means any claims arising from either (a) a party’s breach of the sections of these Terms pertaining to Customer Data, Confidentiality, the Privacy Notice, and the DPA and/or the BAA (if applicable), where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of the section of these Terms pertaining to Use Restrictions.
- “Documentation” means, the then-current, generally available user documentation provided by TestBox in writing detailing the functionalities of the TestBox services and/or the TestBox Technology.
- “End User” means, any person or entity other than User with whom User interacts using the Services.“TestBox Technology” means, (i) the TestBox services and related software, apps, Documentation, API, websites and other content published and/or distributed by TestBox, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) TestBox’ Confidential Information and (iv) any modifications or derivative works of the foregoing.
- “Order Form” means, (i) any statement in User’s Account details specifying additional terms, conditions or pricing from time to time, if any, (ii) any service order referencing these Terms and either (a) accepted by User via Account or online terms or (b) executed by User and Testbox, which details the TestBox services subscribed to, the number of Users authorized to use the TestBox services, applicable fees payable to TestBox, the applicable Subscription Term, and any relevant additional terms and conditions.
- “Software” means the generally available software provided by Testbox in connection with User’s use of the TestBox services, but excludes any applications or APIs that are provided by third parties or are part of the Tools.
- “Subscription Term” means the period stated on a User’s Account details.
- “Supplemental Terms” means any additional applicable terms, besides these Terms, that are entered into and/or accepted by the parties, including but not limited to the Privacy Notice, a BAA, a DPA, or any Order Form entered into (if any).
- “TestBox services” means, the TestBox software-based service offerings identified in a User’s Account details or on an Order Form (if any) and any Updates, including any software, API or Documentation made available by TestBox with such offering, but excludes any applications or APIs separately provided by third parties or are part of the Tools.
- “Tools” means third party software, technology, account, access, and other trial access that is facilitated by TestBox and may be subject to their own underlying use terms and obligations governed by the third-party tool provider. For a current list of supported Tools please visit https://www.testbox.com/solutions.
- “Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the software or TestBox service provided by TestBox to all subscribing Users, but excludes separately priced new products or modules.
- “User” means, any company, organization, or individual who is authorized to use the TestBox services, including an Account administrator, employees, consultants, contractors, and agents of User or its Affiliates, and third parties with which User or its Affiliates transact business.