Terms and Conditions
Please read these Terms and Conditions, carefully before registering for a chargeable subscription for the Services offered on this website operated by TestDome Ltd., a company registered in Croatia under number 081197457, VAT ID: HR72303741144, whose registered office is at Aleja Lipa 1/E, 10040 Zagreb, Croatia.
In these Terms and Conditions the following words shall have the meanings below:
"Company" means TestDome Ltd., Aleja Lipa 1/E, 10040 Zagreb, Croatia.
"Confidential Information" means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), IPRs or finances of the Company or the Customer, which comes into a party's possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information. The obligations of confidentiality under this Agreement do not extend to information that: (a) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (b) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (c) is required by law to be disclosed.
"Consequential Loss" means pure economic loss, losses incurred by any client of the Customer or other third party, loss of profits (whether categorized as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time and loss.
"Customer" means the company or person who completes the online registration form for use of the Services.
"Customer Data" means all data imported into the Services for the purpose of using the Services or facilitating the Customer's use of the Services.
"DPA" means the data processing published at https://www.testdome.com/legal/data-processing-agreement as amended from time to time.
"Effective Date" means the date on which payment for the Services is confirmed via Paypal in the confirmation invoice.
"Fees" means the fees set out in the confirmation invoice sent to the Customer upon acceptance of the online order.
"Force Majeure" means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction, labor dispute, labor shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
"IPRs" means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world.
"Planned Maintenance" means maintenance, upgrades, updates, installation of new versions and repairs which are non-critical and not urgent, to hardware and software.
"Services" means the software applications services (including any computer software programs) of the Company, ordered online by the Customer and set out in the confirmation invoice sent to the Customer.
"Term" means the duration of the Agreement, which shall start on the date the confirmation invoice is sent to the Customer and continue on a monthly basis until terminated by either party as set out in clause 8.
"Terms and Conditions" means these terms and conditions published at https://www.testdome.com/legal/terms-and-conditions as amended from time to time.
Services: The Customer engages the Company and the Company agrees to provide the Services to the Customer for the Term in accordance with the terms of this Agreement.
Availability: The Services shall be available via the Internet 99.9% each calendar month during the Term. Planned Maintenance and the "Availability Exclusions" set out in clause 5 are excluded from the calculation of Availability.
Service Credits: Where the Company notifies the Customer that the Services have not met the Availability level in any calendar month during the Term, the Company shall apply a 20% reduction to the next Fee payable for the Services. Such service credits are the Customer's sole and exclusive remedy for any performance or availability issues with the Services.
3. Licences and Intellectual Property
Licence Grant: Subject to Customer's payment of Fees, the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, IPRs and Confidential Information of the Company) during the Term for the Customer's internal business operations. Such licence permits the Customer to make copies of software or other information as required for the Customer to receive the Services via the Internet. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licences.
Ownership of Company IPRs: All IPRs and title to the Services (save to the extent they incorporate any Customer or third party owned item) shall remain with the Company and/or its licensors. No interest or ownership in the Services, Company IPRs or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services. Unless permitted by any applicable law, disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited.
Restrictions on Use: The Services are provided and may be used solely by the Customer as part of the Customer's website/desktop architecture and unless permitted in writing the Service may not be used on behalf of any third party. The Customer may not lease, loan, resell or otherwise distribute the Services.
Customer Data: The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants the Company the right to modify, copy or save all Customer Data uploaded to the Company's services or processed for use with the Services.
4. Ordering, Fees, Invoicing and Payment
Ordering: The Company is entitled to refuse any order placed by a Customer. If an order is accepted, the Company will confirm acceptance by sending a confirmation invoice to the Customer via email.
Fees: The Fee is the price in force at the date and time of the Customer's order, set out in the confirmation invoice. All Fees exclude any applicable VAT or sales tax. Prices of the services are subject to change upon ten (10) days' notice from the Company. Such notice may be provided at any time on the Website.
Invoices and Payment: All invoices are payable by credit card, in the currency stated in each invoice, in full, together with any applicable VAT or sales tax. The Customer undertakes that all details provided for the purpose of obtaining the Services are correct and that the credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
Late Payment: The Company may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services if any invoices are not paid when due.
Interest: The Company may charge interest on overdue Fees at the applicable statutory rate and reserves the right to recover any costs and reasonable legal fees incurred in recovering payments.
Company Warranties: The Company warrants that it has the right to license the Services and that the Services will not infringe the IPRs of any third party. This warranty does not cover deficiencies or damages relating to any third party components not furnished by the Company. In the event of a breach of the warranties under this clause 5, the Company shall have no liability or obligation to the Customer other than to reimburse the Fees paid for the affected Services.
Customer Warranties: The Customer warrants and represents that it: (a) shall maintain reasonable security measures to protect access to and prevent misuse of the Services; (b) that it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfill its obligations under this Agreement; and (c) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
No Warranty: The Services are provided "as is". The Company gives no warranty for the results of using the Services, nor that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
Exclusions: Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
Availability Exclusions: The following are excluded from the calculation of Availability which result in bugs, errors, incidents, problems or lack of availability of the Services: (a) any breach by the Customer of the terms of this Agreement; (b) use of services, hardware, or software not provided by the Company, including, but not limited to, issues resulting from inadequate bandwidth, unavailability of telecommunications, faults or omission of ISPs, lack of connectivity or other issues related to third-party software or services; (c) use of the Services on a system not supported by the Company or specifically agreed in writing in the Agreement; (d) interconnection of the Services with other software products not supplied by the Company except as expressly agreed in writing in the Agreement; (e) any DNS issues not within the direct control of the Company i.e. a fault on the Customer's network or own equipment configuration; (f) use of the Services after the Company advises the Customer to modify its use of the Services, if the Customer did not modify its use as advised; (g) the Customer's unauthorized action or lack of action when required, or from its employees, agents, contractors, or vendors, or anyone gaining access to the Company's network by means of the Customer's passwords or equipment, or otherwise resulting from the Customer's failure to follow appropriate security practices; (g) faults caused by the Customer's management or connection to the Services; (h) faulty input, instructions, or arguments (for example, requests to access files that do not exist); (i) attempts to perform operations that exceed prescribed quotas or that result from the Company's throttling of suspected abusive behaviour; (j) any Services not paid for at the time of any Availability issues.
Losses: Subject to any statutory provision to the contrary, in no event shall the Company be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.
Limitation of Liability: Subject to the restriction on the types of losses set out in clause 6 above and any restriction on liability that cannot be excluded by applicable law, the total liability of each Party (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any VAT) paid or payable by the Customer to the Company during the preceding twelve (12) month period. If the Term of the Agreement has been less than twelve (12) months then such shorter period shall apply.
Acknowledgement: The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Company, any employees or agents of the Company.
Customer Indemnity: The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (a) any claimed infringement or violation by the Customer of any IPRs with respect to the Customer's use of the Services outside the scope of this Agreement; (b) any access to or use of the Services by a third party, and (c) use by the Company of any Customer Data or Customer provided item; and (d) breaches of data protection law or regulations resulting from the Company processing Customer Data on behalf of and in accordance with the instructions of the Customer.
Company Termination Right: The Company may upon giving notice to the Customer immediately terminate the Agreement if: (a) the Customer has used or permitted the use of the Services in breach of the terms of this Agreement; or (b) the Company is prohibited, under any applicable law from providing the Services.
Mutual Termination Right: Either party may terminate this Agreement at any time: (a) by giving the other party at least 30 days notice in writing; or (b) without notice, if the other party ceases or threatens to cease to carry on business, enters into compulsory or voluntary liquidation, convenes a meeting of its creditors, has a receiver, manager, administrator or similar official appointed in respect of its assets, files documents with a court for the appointment of an administrator or gives notice of its intention to appoint an administrator or a similar event occurs under the law of any applicable jurisdiction; or (c) by giving written notice if the terminating party is prevented by Force Majeure from fulfilling its obligations for more than 14 days.
Material Breach: Either party may terminate this Agreement on giving notice to the other party if the other party commits a material breach of any term of this Agreement which is not remedied within five (5) business days of receipt by the other party of a notice from the non-defaulting party specifying the breach and requiring it to be remedied.
Consequences of Termination: Upon termination of this Agreement, the Company shall immediately cease providing the Services to the Customer and all licenses granted hereunder shall terminate. The Customer shall promptly pay the Company any unpaid invoices. Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement on the date of termination and, in particular but without limitation, the right to recover damages against the other.
Refunds: (a) All refunds are subject to a 20% handling fee. (b) Any refunds paid after 30 days of the corresponding payment may be subject to tax deductions. (c) Purchased credits can be used for testing candidates or they can be refunded at any time within six months (if the payment was made by a credit card or wire transfer) or 90 days (if the payment was made by PayPal) of the corresponding purchase. (d) Any credits remaining unused after six months of the corresponding purchase can be canceled, used for future testing of candidates or refunded at the sole discretion of the Company.
9. Confidential Information
Confidential Information: Each party may use any Confidential Information of the other party only for the purposes of this Agreement. Each party must keep confidential all Confidential Information except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
Disclosure: Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
Return of Confidential Information: Both parties agree to return or destroy all Confidential Information and other materials containing Confidential Information immediately upon completion of the Services or termination of this Agreement for whatever reason and neither party shall, without the prior written consent of the other, make or retain copies of any such documents.
10. Data Protection
Obligations: Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and rules. To the extent that personal data is processed using the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in the DPA.
Third Party Rights: Nothing contained in this Agreement is intended to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
Invalidity or Omission: Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
Entire Agreement: This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
Assignment: The Customer may not assign, transfer or subcontract its rights under this Agreement without the prior written consent of the Company, such consent shall not be unreasonably withheld.
Relationship of Parties: The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
Notices: Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or acknowledged fax to a party at the address given for that party in this Agreement.
Amendments: The Company may change or modify the terms of this Agreement upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of the 30 day period.
Applicable Law and Jurisdiction: This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.