dated September 17, 2021
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING THE SOFTWARE PRODUCT. USE OF THE SOFTWARE PRODUCT IS PERMITTED ONLY IN COMPLIANCE WITH THE TERMS OF THIS DOCUMENT. BY ACCEPTING YOU AGREE TO BE BOUND BY THE AGREEMENT BELOW.
TESTGEAR LIMITED, Poseidonos 1, LEDRA BUSINESS CENTRE, Egkomi, Cyprus (hereinafter referred to as the Licensor) addresses this License Agreement on granting the right to use the Software Product (hereinafter referred to as – Agreement) to any individual or legal entity (hereinafter referred to as the Licensee) who enters into the Agreement, fully and unconditionally agreeing with all its terms (clause 2 of the Agreement). If the Licensee disagrees with the terms of the Agreement, the Agreement is not concluded, and the Licensee is not entitled to use the Software Product.
1.1. Activation – providing the Licensee with actual access to the use of the functionality of the Software Product on the terms of the received License.
1.2. Documentation – materials and documents provided to the Licensee for the purposes of using the Software Product.
1.3. Order – individual terms of the License, determined by the Tariff chosen by the Licensee. The conditions of the Order are reflected in the application, invoice, act or other documents drawn up by the Parties in electronic or written form.
1.4. Activation Key – a technical means of copyright protection in the form of a set of characters intended for License Activation.
1.5. Commercial License – A license granted on the terms of payment of a license fee.
1.6. License – the scope of rights granted to the Licensee in relation to the Software Product, allowing the Licensee to independently, without the right to resell, sublicense and any other transfer to third parties, use the Software Product under the terms of a simple (non-exclusive) license in the ways and within the limits specified by the Agreement.
1.7. Licensee (User) – a person who uses the Software Product for its functional purpose for its own needs, not for resale or other transfer to third parties.
1.8. Software product – TESTGEAR test management system and all derivatives, trademark registered.
1.9. Website https://test-gear.io (Website) – a set of intellectual property objects: programs, databases and their structures, information materials, graphic elements, drawings, audiovisual materials, united by the requirements of functionality, logic, design, thematic focus and purpose, intended for publication on the Internet and displayed in text, graphic or audio form.
1.10. Tariff – the conditions and restrictions on the use of the Software Product, applied in addition to the general terms of the License, as well as the license fee rates of the Licensor.
1.11. Test License – A license granted without payment of a license fee.
1.12. Technical support – activities carried out by the Licensor or third parties authorized by the Licensor to ensure the functioning of the Software Product.
- CONCLUSION OF THE AGREEMENT
2.1. The Agreement is considered concluded if the Licensee has paid for the order for the acquisition of the License. By performing the above actions, the Licensee confirms his full and unconditional agreement with all the terms of this Agreement and undertakes to comply with them.
- SUBJECT OF THE CONTRACT
3.1. The Licensor grants the Licensee the License on the terms and within the limits stipulated by the Agreement and the Order.
- RIGHTS OF THE LICENSOR TO THE SOFTWARE PRODUCT
4.1. The Licensor owns the exclusive right to the Software Product.
4.2. The software product was created without the use of protected results of intellectual activity, the rights to which belong to other authors (right holders).
- LICENSOR’S WARRANTY REGARDING SOFTWARE PRODUCT RIGHTS
5.1. The Licensor warrants that:
5.1.1. Has the right to the Software Product in accordance with clause 5.1 of the Agreement;
5.1.2. There are no restrictions on the disposal of the right to the Software Product, there are no pledges, arrests in relation to the exclusive right to the Software Product;
5.1.3. The Licensor has no information about disputes regarding the Software Product or the rights of third parties that could be violated by the conclusion of the Agreement;
5.1.4. The Licensor has no obligations to third parties that prevent the full or partial execution of the Agreement;
5.1.5. The software product does not contain information that is prohibited for distribution or discredits honor, dignity and business reputation.
5.2. If the representations and warranties provided by the Licensor regarding the Licensor’s rights to the Software Product specified in clause 5.1 of the Agreement are unreliable, the Licensor undertakes to take measures to ensure the Licensee’s unhindered use of the Software Product, reimburse the Licensee for the losses incurred and / or pay a penalty, if it is provided for by the Agreement.
5.3. However, the Licensor cannot guarantee:
5.3.1. Compliance of the functions of the Software Product with the requirements of the Licensee.
5.3.2. Completely uninterrupted and error-free operation of the Software Product.
5.4. No oral or written information can be considered as a warranty obligation.
6.1. To place an Order, the Client carries out the process of registering a personal account on the Site. The order is placed in the personal account based on the Licensee’s choice of a certain Tariff from the list published on the Site.
6.2. The Order is considered to be concluded properly if the Licensee is issued an invoice for payment of the Order in electronic form through the Stripe service or a separate invoice when ordering for a period of more than 12 months.
6.3. The Parties undertake to conclude Orders on the basis of the Agreement.
6.4. In the event of a conflict between the Order and the Agreement, the terms of the Order shall prevail.
- METHODS AND SCOPE OF USE OF THE SOFTWARE PRODUCT
7.1. The Licensee has the right to use the Software Product in its own commercial activities.
7.2. The right to use the acquired copy of the Software Product in the following ways:
7.2.1. reproduction (download) of the Software Product on the Licensee’s device and use on the device on the terms specified in the Order;
7.2.2. granting the right to reproduce the Software Product to third parties in the amount of the number of Licenses acquired by the Licensee, excluding cases of granting a sublicense to such third parties;
7.2.3. adaptation (making changes to the Software Product solely for the purpose of functioning on technical means);
7.2.4. One License grants the right to reproduce and use the Software Product subject to the following terms:
– the number of end devices is determined by the Tariff and specified in the Order;
– the number of simultaneously working users is determined by the Tariff and specified in the Order.
7.3. The Licensee is not entitled to use the Software Product in any other way not specified by the Agreement, in particular, it is prohibited:
7.3.1. reproduce the Software Product by making copies on any material medium;
7.3.2. modify, make any changes to the Software Product and its parts, except for adaptation;
7.3.3. use the Software Product to create derivative works of software;
7.3.4. to study the Software Product or documentation to understand the principles of operation of the Software Product in order to modify or create the Software Product with similar functions;
7.3.5. distribute the Software Product by any means. It is prohibited to provide access to the Software Product by sublicensing, rental, lease, temporary use, public hosting, enabling third parties to download the Software Product, network transfer or otherwise;
7.3.6. remove or alter copyright notices;
7.3.7. attempt to circumvent technical limitations (technical copyright protection measures).
- TERMS APPLICABLE TO THE TEST LICENSE
8.1. The Trial License allows you to use the functionality of the Software Product to a limited extent compared to the Commercial License.
- TERM OF USE OF THE SOFTWARE PRODUCT
9.1. The period of use of the Software Product under the Test License is 14 calendar days. At any time of use, the Licensee has the right to purchase a Commercial license.
9.2. The period of use of the Software Product under the terms of the Commercial License is determined by the Tariff and specified in the Order.
- TERRITORY OF USE OF THE SOFTWARE PRODUCT
10.1. The use of the Software Product on the user’s devices is allowed on the territory of all countries of the world.
- PROVISION OF COPIES OF THE SOFTWARE PRODUCT
11.1. Copies of the Software Product are transferred to the Licensee in electronic form (without material media) via a download link or in a personal account.
- GRANT OF LICENSE FOR THE SOFTWARE PRODUCT
12.1. The right to use the Software Product on the Licensee’s device under the terms of the Trial License is granted at the time of the first installation of the Software Product.
12.2. The right to use the Software Product on the Licensee’s device under the terms of the Commercial License is granted to the Licensee at the time of acceptance of the Agreement (clause 2.1 of the Agreement).
12.3. Activation of the Software Product on the Licensee’s devices is performed by entering the Activation Key provided to the Licensee;
12.4. Termination of use
12.4.1. The Licensor has the right to block access to the use of the Software Product by the Licensee in case of violation by the Licensee of the terms of the Agreement, exclusive rights to the Software Product, termination of the Agreement for any reason.
12.4.2. The Licensee is obliged to stop using the Software Product upon termination of the legal grounds for the use of the Software Product, in particular upon termination of the Agreement.
12.4.3. In the event of termination of use of the Software Product, all copies and copies of the Software Product owned by the Licensee must be deleted (destroyed).
- LICENSOR’S CONTROL OVER THE USE OF THE SOFTWARE PRODUCT
13.1. The Licensor has the right to independently or with the involvement of third parties, by any means that do not contradict the law, control the use of the Software Product by the Licensee for compliance by the Licensee with the terms and restrictions of the Agreement.
13.2. The Licensee is exempt from reporting to the Licensor on the use of the Software Product.
- CONTRACT PRICE
14.1. The right to use the Software Product under the terms of the Test License is granted free of charge.
14.2. The license fee of the Licensor for granting the right to use the Software Product under the terms of the Commercial License is provided for by the Tariffs.
14.3. The license fee for granting the right to use the Software Product is paid by the Licensee against the invoice.
- SOFTWARE PRODUCT UPDATES
15.1. Updated versions of the Software Product (hereinafter – Updates) are provided to the Licensor under the terms of the License. Updates may only be used in conjunction with the Software Product and for the purposes specified in the Agreement.
15.2. Mandatory Updates
15.2.1. During the period of use of the Software Product, the Licensor has the right to grant the Licensee the rights to use updated versions of the Software Product, and the Licensee undertakes, in accordance with the instructions from the Licensor, to install these updated versions of the Software Product (hereinafter referred to as the Mandatory Update).
15.2.2. A mandatory update is required, as a rule, in order to eliminate defects or errors in the Software Product.
15.2.3. The rights to use versions of the Software Product under the Mandatory Update are considered granted from the moment the Licensee is provided with the opportunity to download updates, including by indicating this on the Site.
15.2.5. The mandatory update is provided free of charge (without paying a license fee).
- WARRANTY OF CONFORMITY OF THE SOFTWARE PRODUCT WITH THE DOCUMENTATION
16.1. The Licensor warrants that during the Warranty Period the Software Product will have the features and functions specified in the Documentation.
16.2. The warranty period is specified in the documents placing the Order.
16.3. Any inconsistencies in the properties and functions of the Software Product with the technical documentation revealed during the Warranty Period, including those causing difficulty or impossibility of using the Software Product for its intended purpose, must be eliminated by the Licensor at the request of the Licensee within the terms agreed by the Parties.
- TECHNICAL SUPPORT SERVICES
17.1. The Licensor provides the Licensee with technical support services on the terms specified at the link: https://test-gear.io/support
- RESPONSIBILITIES OF THE PARTIES
18.1. The Parties shall be liable for non-fulfillment or improper fulfillment of their obligations under the Agreement in accordance with the legislation of the Republic of Cyprus and the EU.
18.2. The Licensee is responsible for the accuracy of the data entered by him when making a payment for the Software Product, as well as for the correctness of the payments he makes.
18.3. The Software is provided on an “as is” basis. The licensee is solely responsible for the quality, efficiency and results of its use.
- PROTECTION OF RIGHTS GRANTED
19.1. In the event that a third party disputes the Licensor’s rights to the Software Product, the Parties will immediately take joint action to protect the Licensor’s rights.
19.2. In case of detection of the fact of illegal use by third parties of the Software Product, which became known to the Licensee, he will immediately notify the Licensor about this.
- AMENDMENT AND TERMINATION OF THE AGREEMENT
20.1. The Agreement may be amended or terminated by agreement of the Parties or at the request of one of the Parties on the grounds and in the manner provided for by the legislation of the Republic of Cyprus and the EU.
20.2. Amendment of the Agreement:
20.2.1. The terms of the Agreement may be changed by the Licensor unilaterally out of court by publishing changes or a new version of the Agreement at the Internet address: https://test-gear.io/license-agreement. The changes come into force for the Licensee from the date following the date of their publication, provided that the Licensee continues to use the Software Product after the publication of the changes or acceptance of an updated version of the Agreement.
20.2.2. License Types and Tariffs may be changed by the Licensor at any time by publishing the modified document at the Internet address: https://test-gear.io/pricing. Changes apply to Orders placed after the publication of the relevant information. The Licensor provides its consent to the changes at the time of placing the Order.
20.3. In the event of termination of the Agreement for any reason, the Licensee undertakes to stop using the Software Product, destroy all copies (copies) of the Software Product it has, remove the Software Product from all devices and notify the Licensor in writing of the fulfillment of these obligations. The cost of the unused period under the License is non-refundable to the Licensee.
- RESOLUTION OF DISPUTES FROM THE CONTRACT
21.1. Disputes and disagreements of the Parties shall be predominantly resolved by the Parties through negotiations.
21.2. The claim procedure for pre-trial settlement of disputes from the Agreement is mandatory. The Party that received a written claim is obliged to consider it within 30 calendar days from the date of receipt and send a written reasoned response to the other Party.
21.3. In case of failure to resolve disagreements in the claim procedure, as well as in case of non-receipt of a response to the claim in accordance with clause 21.2 of the Agreement, the dispute is referred to the Supreme Court of Cyprus or a court of general jurisdiction.
22.1. The Parties, in accordance with this section of the Agreement, undertake to ensure the confidentiality of information related to the Agreement and its execution, except for information that cannot be confidential by virtue of the legislation of the EU. Confidential information includes information received by the Parties from each other during the conclusion and execution of the Agreement and designated by them as such.
22.2. Confidential information is any information and materials that are provided on a tangible medium by one Party to the other Party marked “Confidential” or another mark of this nature. The following information is considered Confidential Information, regardless of whether it is accompanied by a corresponding mark or definition or not: the internal structure, structure and code of the Software Product, materials related to the Software Product, access to which is restricted.
22.3. The fact of conclusion and execution of the Agreement is not confidential. However, the use of information about the Agreement, including its Parties and conditions, for advertising and other similar purposes is subject to the written consent of the other Party.
22.4. Confidential information is intended solely for the Parties and cannot be fully (partially) transferred (published, disclosed) to third parties or used in any other way with the participation of third parties without the consent of the Parties, unless the Agreement provides otherwise.
22.5. The obligations of the Parties regarding confidential information provided for in this section of the Agreement will remain in force indefinitely, regardless of the termination of the Agreement.
23.1. The contract is concluded by accepting an offer posted (sent) in electronic form.
23.2. Unless otherwise provided by the Agreement for certain types of documents, documents and other legally significant messages under the Agreement shall be sent in electronic form.
23.3. Pre-trial claims are sent electronically.
23.4. Identification of the Parties during the exchange of electronic documents is carried out using any applicable information technologies and technical devices that allow to reliably identify the person who expressed the will to draw up and send these documents.
23.5. The Parties may request any applicable confirmation of receipt of an electronic document from the other Party.
23.6. The Parties may exchange paper copies of documents signed by the Parties’ (authorized persons) handwritten signature. The request of the Party to provide a document in paper form must be satisfied by the other Party within 10 working days from the date of its receipt.
23.7. Different copies of the same document can be issued both in electronic form and on paper.
23.8. Legally significant messages are sent by the Parties only using the contact information provided by the Parties when concluding and/or executing the Agreement. The parties are obliged to notify each other in writing of changes in contact information in a timely manner and bear the risk of failure to fulfill this obligation.
23.9. The relations of the Parties under the Agreement shall be governed by the legislation of the Republic of Cyprus and the EU.
23.10. The Licensor has the right to use trademarks, logos, names and other designations individualizing the Licensee free of charge on the Site, in advertising, information brochures and marketing materials.