Sofy Testing Service Terms of Service
EFFECTIVE DATE: December 4, 2020
These Terms of Service constitute an agreement (this “Agreement”) by and between Quantyzd, a corporation organized and existing under the laws of the State of Washington (DBA Sofy), and each customer of the Sofy Application Testing Service in each instance of a customer’s electronic submission of an Android/IOS Package Application File to the Quantyzd Application Testing Service (the “Service”).
Application File” refers to the Package File to be submitted to Quantyzd for the rendering of the Service.
1.0 Service & Payment
After you successfully upload the Application File to Quantyzd, the Service would be offered as then in effect, and in accordance with all then-current terms and conditions. The Service would be executed on a particular device and on a particular Operating System version, and any results may not be useful in evaluating the performance of the Application File on any other device or operating system. Under the Service, (1) the rendering of the test upon the Application File should take no more than 25 milliseconds (whether local or on a webservice call), and (2) the Application File should experience no “crashes” during the rendering of the test. Quantyzd analytics reports (the “Reports”) generated by the Service would then be offered for on-line access via your user account.
(b) Data Ownership
2.0 Online Policies
(a) Acceptable Use Policy
The Quantyzd Acceptable Use Policy, available [insert link] is hereby incorporated in its entirety into this Agreement. In the event of your material breach of the Acceptable Use Policy, Quantyzd may suspend or terminate its rendering of the Service in addition to such other remedies as Quantyzd may have at law.
(a) Right to Do Business
Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.
(b) No “In-Application” Purchases
You warrant that your product will not cause any “in-application” (or “in-app”) purchases to be executed during the rendering of the Service. If any “in-application” purchases are executed during the rendering of the Service you will reimburse the full amount of such purchases to Quantyzd.
(c) Application File End-User Consents
As a condition of your usage of the Service, you warrant and agree that (i) the Application File will not cause any data and/or personally identifiable information of any end-users to be transmitted to Quantyzd in the rendering of the Service OR, if the Application File will cause any data and/or personally identifiable information of any end-users to be transmitted to Quantyzd in the rendering of the Service, that (ii) you have obtained all end-user consents required by applicable law and that you use such data or information only for the limited purposes for which the user has given you permission to do so.
(d) Further Testing of the Application File
(e) Disclaimers as to the Application File
QUANTYZD HAS NO OBLIGATION TO INDEMNIFY OR DEFEND AGAINST CLAIMS RELATING TO THEPERFORMANCE OR NON-PERFORMANCE OF THE APPLICATION FILE OR RELATING TO THE CONFORMITY OR NON-CONFORMITY OF THE APPLICATION FILE WITH THE STANDARDS OF THE SERVICE, AND IN NO EVENT DOES QUANTYZD WARRANT THAT THE APPLICATION FILE WILL PERFORM WITHOUT ERROR OR INTERRUPTION. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of the performance or non-performance of the Application File or the conformity or non-conformity of the Application File with the standards of the Service, as a third-party beneficiary or otherwise.
(f) Disclaimers as to the Service
Except for the express warranties specified in this Section 4, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND QUANTYZD MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Quantyzd does not warrant that the Service will perform without error or interruption. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of the Service rendered by Quantyzd or under or on account of any Reports or other representations made in the course thereof, as a third-party beneficiary or otherwise.
4.0 Limitation of Liability
In no event:
(a) WILL THE LIABILITY OF QUANTYZD ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID TO QUANTYZD HERE UNDER IN THE FORM OF THE ONE-TIME SERVICE FEE or SUBSCRIPTION FEE.
(b) WILL QUANTYZDBE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 5 APPLY:
- TO LIABILITY FOR NEGLIGENCE
- REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE
- WITHOUT REGARD TO WHETHERQUANTYZDIS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND WITHOUT REGARD TO WHETHER SUCH DAMAGES WERE FORESEEABLE
- WITHOUT REGARD TO WHETHERYOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 5, the liability of Quantyzd will be limited to the fullest extent permissible under such applicable law.
5.0 Intellectual Property
Do not infringe upon the copyrights, trademark rights, trade secret rights, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder.
(a) You agree to indemnify, defend, and hold harmless Quantyzd, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys’ fees) arising from
- any information that you or anyone using your account may submit or access in the course of using the Service
- your violation of the terms of this Agreement
- the breach of any applicable privacy laws in the rendering of the Service including, without limitation, the collection of personally identifiable information
- any violation or failure by you to comply with all laws and regulations in connection with your use of the Service, whether or not described herein.
(b) Each Party (the “Indemnifying Party”) will indemnify and hold the other Party (the “Indemnified Party”) harmless from and will defend the Indemnified Party against any claim asserted against the Indemnified Party for losses, injuries, or damages to the extent that such losses, injuries, or damages are caused by the Indemnifying Party’s gross negligence or willful misconduct, subject to the limitation of Section 5 hereof. THIS SECTION 6(b) STATES THE ENTIRE INDEMNIFICATION OBLIGATION OF QUANTYZD TO YOU.
7.0 Term & Termination
This Agreement will continue in effect from your acceptance until such time as
- Quantyzd completes its rendering of the Service or
- The Agreement is terminated in accordance with the provisions hereof or
- The Agreement is otherwise terminated by Quantyzd in its sole discretion.
The following provisions shall survive in perpetuity beyond the Term of this Agreement:
- Sections 2(b), 3(b), 4(c), 4(d), 4(e), 4(f),5, and 6 hereof,
- any other provision that must survive the Term of this Agreement to fulfill its essential purpose.