The Domain name https://www.testing-whiz.com (hereinafter referred to as “website”) is an entity owned by Cygnet Infotech, a CMMi Level 3 IT services company based in USA, South Africa, & India, having its office at 16, Swastik Society, Nr. AMCO Bank Stadium Circle, Navrangpura, Ahmedabad - 380009, India (hereinafter referred to as “TestingWhiz”)
2. Acceptance of the Terms
3. About TestingWhiz Services
TestingWhiz is committed to provide innovative, automated software testing solution to global enterprises and software companies for their web, mobile and cloud applications.
4. Use of the Services
a) TestingWhiz hereby grants you a limited, non-exclusive, non-transferable, revocable rights and license to use the services.
b) You shall have a limited right to use the services, as may be required under applicable law.
c) TestingWhiz shall not have any liability of any nature, through all means (whether manual or automated) to accept/reject or deny any data from being transmitted to the third-party system.
d) You shall follow and adhere to the guidelines relating to service if any set out hereunder or separate agreement as may be required under relevant provisions in accordance with the applicable law.
5. In Connection with using or accessing the Services, you will not
a) Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
b) Use services if you are not able to form legally binding contracts under applicable laws. Persons who are "incompetent to contract" within the meaning of the applicable laws, including minors, un-discharged insolvents etc. are not eligible to use TestingWhiz services. If you belong to the age-restricted group, you shall not register on the website;
c) Transfer your user ID to another party without TestingWhiz consent;
d) Distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
e) Distribute viruses or any other technologies that may harm TestingWhiz or the interests or property of users;
f) Use any robot, spider, scraper, or other automated means to access services for any purpose;
g) Bypass services robot exclusion headers interfere with the working of our services, or impose an unreasonable or disproportionately large load on our infrastructure;
h) Commercialize any application or any information or software associated with such applications;
i) Harvest or otherwise collect information about users without their consent or
j) Circumvent any technical measures TestingWhiz uses to provide for the services;
k) If TestingWhiz believes that you are abusing services in any way, TestingWhiz may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our services, delay, remove any special status associated with your account(s), remove and, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our services;
l) TestingWhiz may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our services. Additionally, TestingWhiz reserves the right to refuse or terminate all or part of our services if they are detrimental in nature to our services;
m) The Agreement will continue to apply until terminated by either you or TestingWhiz as set forth below.
If you want to terminate your agreement with TestingWhiz, you may do so by (i) not accessing the website or (ii) closing your account for all of the services that you use, where TestingWhiz has made this option available to you.
6. User Account, Password and Security
a) If you use our services, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or device to prevent unauthorized access to your account. You agree to accept responsibility for all activities that occur under your account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform TestingWhiz immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorized manner. You shall ensure that you exit from your account at the end of each session. TestingWhiz cannot and will not be liable for any loss or damage arising from your failure to comply with this section. You may be held liable for losses incurred by TestingWhiz or any other user or visitor to the website due to authorized or unauthorized use of your account as a result of your failure in keeping your account information secure and confidential.
b) You shall ensure that the account information provided by you in the website's registration form is complete, accurate and up-to-date. Use of another user's account information for availing the services is expressly prohibited.
c) If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete) then TestingWhiz shall not be responsible for any outcome of the service of your account whether appropriate or inappropriate in current or future use of the services.
d) TestingWhiz disclaims all liability for damages to the extent arising from (i) the failure of services provided by third parties (e.g. Internet service provider, telecommunication, carriers), (ii) the disclosure or dissemination of information during transmission to and from hosted application, you shall encrypt such information during transmission and (iii) delays or error related to the hosted application caused by system or components outside of the TestingWhiz network, including but not limited to your hardware, software and /or networking system, telecommunication, system, internet access, telephone and communication equipment. Nothing express or implied in this agreement or otherwise shall permit you or any party working on behalf of you the right to perform an ethical hack, utilize electronic scanning or otherwise implement active or passive security testing against TestingWhiz or its affiliate systems.
7. Intellectual Property Rights
a) The website and mobile application, the processes, and their selection and arrangement, including but not limited to all text, graphics, user interfaces, visual interfaces, sounds and music (if any), artwork and computer code (collectively, the "Content") is owned and controlled by TestingWhiz and the design, structure, selection, coordination, expression, look and feel and arrangement of such content is protected by copyright, patent and trademark laws, and various other intellectual property rights. TestingWhiz reserves the right to change or modify the content from time to time at its sole discretion.
b) The trademarks, logos and service marks displayed on the website ("Marks") are the property of TestingWhiz. You are not permitted to use the marks without the prior consent of TestingWhiz.
c) Unless otherwise indicated or anything contained to the contrary or any proprietary material owned by a third party and so expressly mentioned, TestingWhiz owns all intellectual property rights to and into the trademarks including, without limitation, all rights, title and interest in and to copyright, related rights, patents, utility models, designs, know-how, trade secrets and inventions (patent pending), goodwill, source code, meta tags, databases, text, content, graphics, icons, and hyperlinks.
d) Accept as provided herein, you acknowledge and agree that you shall not copy, republish, post, display, translate, transmit, reproduce or distribute any content through any medium without obtaining the necessary authorization from TestingWhiz.
8. Use of our Intellectual Property
Any TestingWhiz Intellectual Property provided or otherwise made available to you or your Affiliates may be used by you and/or its affiliates solely for the express purposes described in this agreement during the Term of this Agreement. For the avoidance of doubt, you will not:
✔ copy any TestingWhiz Intellectual Property;
✔ distribute copies of any TestingWhiz Intellectual Property;
✔ modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble, or make derivative works or improvements based on any TestingWhiz Intellectual Property;
✔ use, rent, loan, sublicense, lease, distribute, or attempt to grant other rights to any TestingWhiz Intellectual Property; or
✔ use any TestingWhiz Intellectual Property to act as a consultant, service bureau or application service provider, or to permit remote access to any TestingWhiz Intellectual Property.
9. Entity Registration
10. Maintenance of Logs
Subject to the applicable law, TestingWhiz may maintain transaction logs of all the request/response processed by you (i.e. capturing the complete meta data available in http headers, request and response time stamp along with status (success/failure/timeout etc.) from time to time.
b) Once you provide your information to us, TestingWhiz may use such information to provide various services with respect to your transaction only.
12. Disclaimer of Warranties and Liability
You explicitly understand and agree that, to the maximum extent permitted by applicable law TestingWhiz will not be liable for any loss that you may incur as a consequence of unauthorized use of your account or account information in connection with the website or any services, either with or without your knowledge. TestingWhiz has endeavored to ensure that all the information on the website is correct, but TestingWhiz neither assures nor makes any representations regarding the quality, accuracy or completeness of any data, information, product or service. TestingWhiz shall not be responsible for the delay or inability to use the website or related functionalities or services, the provision of or failure to provide functionalities, or for any information, software, products, or otherwise arising out of the use of the website or services, whether based on contract, tort, negligence, strict liability or otherwise.
Further, TestingWhiz shall not be held responsible for non-availability of the website during periodic maintenance operations or any unplanned suspension of access to the website that may occur due to technical reasons or for any reason beyond TestingWhiz control. The user understands and agrees that any data uploaded through the website is done entirely at your own discretion and you will be solely responsible for any results from the submission such material or data to TestingWhiz system. TestingWhiz accepts no liability for any errors or omissions, with respect to any services provided to you whether on behalf of third parties or itself.
Further you acknowledge that TestingWhiz is not providing legal, financial, tax, accounting or profession advice. You are solely responsible for the preparation, content, accuracy and review of any documents data or output prepared or resulting from the use of the TestingWhiz services. In no event shall TestingWhiz or its third party provider be liable for any penalties, interest or taxes assessed by any governmental or regulatory authority.
You will be required to enter a valid phone number while registering on the website. By registering your phone number with us, you provide consent to be contacted by us via phone calls and/or sms notifications in relation to services updates, in case of any successful/failure of transactions or transactions error notification etc. We will not use your personal information to initiate any promotional phone calls or sms.
Notwithstanding anything contained in this agreement, it is hereby clearly understood by the parties that TestingWhiz shall have no responsibility or liability in relation to failure of any activity, if such activity may have been initiated by you and/or a third party through services, and has failed or has been delayed on account of the process of authentication and acceptance of your data by a third party system or otherwise, including but not limited to, failure or delay as a result of, network or connectivity failure, device or application failure, third party system failure, possible down time or any other technical or non-technical error of any nature, whether foreseen or unforeseen at the time of entering into this agreement.
You agree to indemnify, defend and hold harmless TestingWhiz its subsidiaries, affiliates, vendors, agents and their respective directors, officers, employees, contractors and agents (herein after individually and collectively referred to as "indemnified parties") from and against any and all losses, liabilities, claims, suits, proceedings, penalties, interests, damages, demands, costs and expenses (including legal and other statutory fees and disbursements in connection therewith and interest chargeable thereon) asserted against or incurred by the indemnified parties that arise out of, result from, or in connection with (i) Your breach of the agreement(s); or (ii) any claims made by any third party due to, or arising out of, or in connection with, your use of the website / services; or (iii) Your violation of any rights of another, including any intellectual property rights.
TestingWhiz may notify you of any claims where you shall be liable to indemnify TestingWhiz. You will then be required to consult with TestingWhiz regarding the course of action to be undertaken in defending such a claim. Further, you shall not compromise or settle any claim or admit any liability or wrongdoing on the part of TestingWhiz without the express prior written consent of TestingWhiz which can be withheld or denied or conditioned by TestingWhiz in its sole discretion.
14. Electronic Communication
When you use the website, application or send emails or other data, information or communication to TestingWhiz, you agree and understand that you are communicating with TestingWhiz through electronic records and you consent to receive communications via electronic records from TestingWhiz that may be periodically and as and when required. TestingWhiz will communicate with you by email or by notices on website or electronic records on the website or on your mobile number which will be deemed adequate service of notice / electronic record to the extent permitted under any applicable law.
15. Fees and Payments
The services are available under subscription plans of various durations. Payments for subscription plans of the duration of less than a year can be made only by Credit Card. Your subscription will be automatically renewed at the end of each subscription period unless you downgrade your paid subscription plan to a free plan or inform us that you do not wish to renew the subscription. At the time of automatic renewal, the subscription fee will be charged to the Credit Card last used by you. We provide you the option of changing the details if you would like the payment for the renewal to be made through a different Credit Card. If you do not wish to renew the subscription, you must inform us at least seven days prior to the renewal date. If you have not downgraded to a free plan and if you have not informed us that you do not wish to renew the subscription, you will be presumed to have authorized Cygnet to charge the subscription fee to the Credit Card last used by you.
From time to time, we may change the price of any service or charge for use of services that are currently available free of charge. Any increase in charges will not apply until the expiry of your then current billing cycle. You will not be charged for using any service unless you have opted for a paid subscription plan.
a) Entire Agreement: This agreement (including all attachments thereto, and all documents incorporated herein by reference): (a) represents the entire agreement between the parties with respect to the subject matter hereof and supersedes any proposals, representations previous or contemporaneous oral or written agreements and any other communications between the parties.
b) Assignment: You are prohibited to assign this agreement or any of its rights hereunder, or delegate any of its obligations hereunder, whether voluntarily, involuntarily, by operation of law or otherwise, without TestingWhiz prior written consent, TestingWhiz in sole discretion, may transfer its rights and obligations (also known as “assign”) under this agreement without your prior express consent, provided that TestingWhiz assigns the agreement on the same terms or terms that are no less advantageous to you.
c) Independent Contractors: The parties are entering into this agreement as independent contractors, and this agreement will not be construed to create a partnership, joint venture, or employment relationship between them. Neither party will represent itself to be an employee or agent of the other or enter into any agreement or legally binding commitment or statement on the other's behalf or in the other’s name.
d) Grievance Officer: In compliance with the applicable law and the rules made thereunder, the Grievance Officer of Cygnet Infotech shall be Ms. Bhoomi Mehta with email address: firstname.lastname@example.org
f) Dispute Resolution:
ii. Failing resolution through negotiation, any remaining dispute shall be submitted to binding arbitration in accordance with the Arbitration and Conciliation Act, 1996 (including any statutory modifications and substitutions made thereto).The language of the arbitration shall be English. The place of arbitration shall be Ahmedabad and shall performed by a single arbitrator chosen by mutual consent of both the parties. Where the single arbitrator is not agreed upon between the Parties within 15 (fifteen) days from the date at which the negotiations failed in that case Arbitration proceeding shall be carried out by three Arbitrator. Each party shall appoint one arbitrator. The two appointed arbitrators shall appoint a third arbitrator to form the Arbitral Tribunal. The third arbitrator shall act as the presiding arbitrator. The decision of the Tribunal shall be binding on the parties. The Arbitral Tribunal will have no power to award (i) damages inconsistent with the Agreement or (ii) punitive damages or any other damages not measured by the prevailing party’s actual damages, and the parties expressly waive their right to obtain such damages in arbitration or in any other forum. All aspects of the arbitration will be confidential. Neither the parties nor the arbitrators may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Each party will promptly pay its share of all arbitration fees and costs, provided that such fees and costs shall be recoverable by the prevailing party as determined by the arbitrator. If a party fails to pay such share promptly upon demand, the Arbitral Tribunal shall, upon written request by the other party, enter a final and binding decision against the nonpaying party for the full amount of such share, together with an award of attorney's fees and costs incurred by the other party in obtaining such decision, which decision may be entered in any court of competent jurisdiction. Except for the failure of a party to pay arbitration fees and costs that requires resort to the Arbitral Tribunal to order such payment, the parties will bear their own attorneys’ fees in any matter or dispute under this Agreement.
iii. Notwithstanding the determination by the parties to utilize arbitration as specified above for resolution of disputes arising out of or in connection with this agreement, nothing herein shall preclude either party from seeking and obtaining from a court of competent jurisdiction appropriate equitable relief, including without limitation, a temporary restraining order or other injunctive relief, to prevent a breach of this agreement relating to Intellectual Property, confidentiality, or non-solicitation, or to otherwise maintain the status quo pending outcome of any arbitration.
g) Force Majeure: Neither party will be liable for any failure to perform any of its obligations hereunder by reason of a Force Majeure Event, provided that the affected party provides the other party prompt notice of the applicable circumstance and uses commercially reasonable efforts to re-commence performance as promptly as possible; and provided further that if a party’s performance is delayed for a period of more than thirty (30) days by reason of any Force Majeure Event, then the other party may at its option, by written notice to the affected party, either: (a) terminate this agreement; or (b) extend the Term of this agreement for a number of days equal to the duration of the affected party’s non-performance.
h) Waiver: To be effective, any waiver by a party of any of its rights or the other party’s obligations under this agreement must be created in a writing signed by the party to be charged with the waiver. Waiver of any breach of any term or condition of this agreement will not be deemed a waiver of any prior or subsequent breach. No failure or forbearance by either party to insist upon or enforce performance by the other party of any of the provisions of this agreement or to exercise any rights or remedies under this agreement or otherwise at law or in equity will be construed as a Waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
i) Severability: If any provision of this agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed in order to effectuate the purpose and intent of this agreement, and the invalidity or unenforceability of any provision of this agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.
l) Complaint: If we receive a complaint from any person against you with respect to your activities as part of the services, we will forward the complaint to the primary email address of your user account. You must respond to the complainant directly within 10 days of receiving the complaint forwarded by us and copy us in the communication. If you do not respond to the complaint within 10 days from the date of our email to you, we may disclose your name and contact information to the complainant for enabling the complainant to take legal action against you. You understand that your failure to respond to the forwarded complaint within the 10 days’ time limit will be construed as your consent to disclosure of your name and contact information by TestingWhiz to the complainant.