Terms of service
Please read these Terms of Service, carefully before registering for an account or purchasing a chargeable subscription to the Services offered on this website operated by TestLodge Limited of 7 Ty Nant Court Morganstown, Cardiff, CF15 8LW, UK, company number 08450213.
By registering for an account or completing the online registration form for a free trial or chargeable subscription for the Services at www.testlodge.com and clicking on the signup button, you the Customer agree to be legally bound by these Terms of Service, the DPA and the Privacy Policy as they may be modified and posted on our website from time to time. In the event of any inconsistency between the content of the Terms of Service, DPA and the Privacy Policy, the Terms of Service shall prevail followed by the DPA and then the Privacy Policy.
If you do not wish to be bound by these Terms of Service, DPA and Privacy Policy then you may not register to use or purchase a licence to use our Services.
1. Definitions
In this Agreement, the following words shall have the following meanings:
| “Agreement” | means these Terms of Service, DPA and the Privacy Policy together; |
| “Authorised Users” | means employees, agents, consultants or independent contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Services online; |
| “Business Day” | means Monday to Friday excluding any national holiday in the UK. |
| “Business Hours” | means 9 am to 4 pm (local UK time) on each Business Day; |
| “Company” | means TestLodge Limited; |
| “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), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, 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; |
| “Consequential Loss” | means pure economic loss, special loss, losses incurred by any client of the Customer or other third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or products or wasted management or staff time; |
| “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; |
| “Customer” | means the company or person who registers online for an account or completes the online registration form to purchase the Services; |
| “DPA” | means the data processing agreement published at https://www.testlodge.com/policies-procedures/dpa as amended from time to time; |
| “Effective Date” | means the date on which the account is registered by the Customer; |
| “Feedback” | means feedback, innovations or suggestions created by the Customer or Authorised Users regarding the attributes, performance or features of the Services; |
| “Fees” | means the fees set out in the confirmation invoice sent to the Customer upon acceptance of its 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, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency; |
| “Initial Term” | means a period of either 1 month or 12 months (as specified in the confirmation invoice sent to the Customer) starting on the Effective Date; |
| “Intellectual Property Rights” | 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; |
| “Privacy Policy” | means the privacy policy published at https://www.testlodge.com/policies-procedures/privacy as amended from time to time; |
| “Renewal Term” | means a period of 1 month or 12 months (as specified in the confirmation invoice sent to the Customer); |
| “Services” | means the software applications services (including any computer software programmes and, if appropriate, Updates thereto) of the Company, ordered online by the Customer and set out in the confirmation invoice sent to the Customer; |
| “Statistical Data” | means aggregated, anonymised data derived from the Customer or Authorised User’s use of the Services which does not include any personal data or Customer Confidential Data; |
| “Term” | means the Initial Term plus any Renewal Terms together; |
| “Terms of Service” | means these terms of service published at https://www.testlodge.com/policies-procedures/terms as amended from time to time; |
| “Updates” | means any new or updated applications services or tools (including any computer software programmes) made available by the Company as part of the Services. |
2. Services
2.1 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.
2.2 The Services shall be made available to Customers via the Internet in accordance with the terms of this Agreement.
2.3 The Services are not available and may not be accessed, purchased or used by the following persons: (i) minors (persons under the age of 18 years of age; or (ii) any user who has had access to the Services suspended or who has been removed from using the Services by the Company or the Customer.
3. Licences & Intellectual Property Rights
3.1 Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive and non-transferable licence to permit the Customer and Authorised Users to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term for the Customer’s internal business operations. Such licence shall permit the Customer to make such cache copies of software or other information as are 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.
3.2 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited, unless permitted by mandatory applicable law.
3.3 Unless otherwise specified in this Agreement, the Services are provided and may be used by the Customer in conjunction with its existing systems and applications to facilitate the Customer and its Authorised Users to access and use the Services. The Customer may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, provide access to or allow use of the Services by or on behalf of any third party.
3.4 All Intellectual Property Rights and title to the Services (save to the extent they incorporate any Customer Data, Customer Intellectual Property Rights or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, the Intellectual Property Rights or otherwise is transferred 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.
3.5 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data its pre-existing Intellectual Property Rights and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and its pre-existing Intellectual Property Rights. The Customer grants the Company a non-exclusive, royalty free licence to use Customer Data, its pre-existing Intellectual Property Rights and any third party owned item from the Effective Date for the Term to the extent required for the provision of the Services.
3.6 The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
3.7 The Company may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
3.8 The Customer is not allowed to remove any proprietary marks or copyright notices from the Services.
3.9 The Customer grants the Company the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting the Company from using the Statistical Data for business and/or operating purposes, provided that the Company does not share with any third party Statistical Data which reveals the identity of the Customer or Customer’s Confidential Information.
4. Ordering, Fees, Invoicing and Payments
4.1 In consideration of the provision of the Services by the Company, the Customer shall pay the Company the Fees.
4.2 The Company shall render invoices to the Customer in respect of the Fees and all Fees are payable by credit card unless the Company accepts any other payment method online during the Term. 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 are exclusive of VAT.
4.3 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.
4.4 All invoices shall be in USD and shall be payable immediately in full by the Customer together with any Value Added Tax (if applicable).
4.5 The Customer undertakes that all details provided for the purpose of obtaining the Services are correct and that any credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
4.6 If for any reason the Company does not receive payment of the Fees, in full, when due, or the Company is charged back for any Fees previously charged to the Customer‘s credit card, the Company reserves the right to: (i) pursue all available remedies to obtain payment, plus its reasonable legal fees, recovery fees and any statutory interest; and (ii) may without notice block all access to the account and Services and terminate this Agreement. Where access is blocked the Customer will be notified of this by email. If the Agreement is subsequently terminated by either party the provisions of clause 8.5 shall apply following termination.
5. Warranties
5.1 The Company warrants to the Customer that: (i) it has the right to license the Services; and (ii) by performing the Services it will not infringe the Intellectual Property Rights of any third party (including but not limited to Intellectual Property Rights in any jurisdiction) or be in breach of any obligations it may have to a third party. The foregoing warranties shall not: (a) cover deficiencies or damages relating to any third party components not furnished by the Company; or (b) any third party provided connectivity necessary for the provision or use of the Services.
5.2 The Customer warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform its obligations; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement; and (iv) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement.
5.3 The Customer warrants and represents that it and the Authorised Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that access to the Services granted under this Agreement is limited as set out in this Agreement. In particular the Customer and Authorised Users shall treat any identification, password or username or other security device for use of the Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. The Customer shall be granted a single account holder login ID and password for each account. Any breach of this clause shall be immediately notified to the Company in writing. The Customer acknowledges and agrees that the Company may suspend access to the Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by acts of the Customer or Authorised Users. Where possible, the Company shall give the Customer 24 hours written notice, before suspending access to the Services, giving specific details of its reasons.
5.4 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
5.5 The Customer acknowledges that the Services should not be used for high risk applications where precise locations or features on maps are essential to the Customer, for example use of the Services by the emergency services.
6. Liability
6.1 Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct of the Company in connection with the provision of the Services.
6.2 Neither party shall be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
6.3 Neither party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
6.4 Subject to sections 6.1 to 6.3 inclusive, the total liability of the Company to the Customer in aggregate (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, duty, sales or similar taxes) paid or payable by the Customer to the Company during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
6.5 The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Authorised Users who access the Services as if such acts, omissions or negligence had been committed by the Customer itself.
6.6 In no event shall the Customer raise any claim under this Agreement more than one (1) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement.
6.7 The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and has not relied on any representations made by the other, their employees or agents.
7. Indemnities
7.1 The Company, at its own expense, shall: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis that use of the Services is an infringement of any Intellectual Property Rights of a third party (excluding any claim or suit deriving from any Customer Data or Customer or Authorised User provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defence and/or settlement; and (c) the Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the affected part thereof; or (ii) replace the Services or affected part with other suitable non-infringing service(s); or (iii) modify the Services or affected part to make the same non-infringing.
7.3 The Company shall have no obligations under this section 7 to the extent that a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, fines, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by the Customer or an Authorised User of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by a third party; (iii) use by the Company of any Customer Data or Customer or Authorised User provided item; (iv) breaches of data protection law or regulations or the terms of the DPA by the Customer or an Authorised User; or (iv) any breach of the terms of this Agreement by an Authorised User; and the Company shall be entitled to take reasonable measures to prevent the breach from continuing.
7.5 Subject to sections 7.1 to 7.4 inclusive, each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) against any costs, damages or expenses (including the cost of any settlement or legal fees and expenses) arising out of any claim, action, proceeding, fine or demand that may be brought, made or prosecuted against the second party under section 7 of this Agreement.
8. Term and Termination
8.1 This Agreement will begin on the Effective Date and continue for the Initial Term. Upon expiry of the Initial Term the Agreement shall automatically renew for further Renewal Terms unless a party terminates early in accordance with its rights set out below in this section 8.
8.2 The Company may immediately terminate this Agreement or suspend provision of any Services provided pursuant to this Agreement if: (i) the Customer has used or permitted the use of the Services in breach of the terms of this Agreement; (ii) the Company is prohibited, under the laws of England or otherwise, from providing the Services.
8.3 Upon giving notice to the Customer, the Company will terminate any trial accounts that do not upgrade to a paid subscription once their free 30 day trial expires. The Company may also terminate any accounts which it deems to be inactive, which shall include but not be limited to where an account has not been accessed for a period of more than 30 days or where an account only contains test data. Customer Data in the account shall be returned or deleted as set out in clause 8.5 (iv).
8.4 Either party shall be entitled to terminate this Agreement at any time on written notice if the other party: (i) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (ii) commits a material breach, (which includes failure to pay Fees when due), of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; (iii) is prevented by Force Majeure from fulfilling its obligations for more than 28 days.
8.5 Upon termination of this Agreement: (i) the Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Term; (ii) the Company shall immediately cease providing the Services to the Customer; (iii) all licences granted to the Customer shall terminate; and (iv) at the option of the Customer, the Company shall following receipt of a request from the Customer delete (in accordance with the terms of the DPA) or permit the Customer to export all Customer Data stored in the Company’s database in its then current format, free of charge, provided that such request is received within 30 days of termination. If the Customer requires any Customer Data in a different format the Company reserves the right to charge for this additional service on a time and materials basis. Where the Customer has ceased using its account for a period of at least 36 weeks, or 24 weeks after the Customer has terminated this Agreement, the Company will permanently delete all personal data.
8.6 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
9. Confidential Information
9.1 Each party may use the Confidential Information of the other party only for the purposes of this Agreement and must keep confidential all Confidential Information of the other party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
9.2 Each 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 provided that such employee or agent is subject to confidentiality undertakings similar to those set out in this Agreement.
9.3 Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
9.4 The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.
10. Data Protection
10.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
10.2 To the extent that personal data is processed when the Customer or Authorised Users use 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 the terms of the DPA.
10.3 If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
10.4 Where the Company collects and processes personal data of the Customer, as a data controller, when providing the Services to the Customer, for example when the Customer provides an email address upon registration or ordering Services, such collection and processing shall be in accordance with the Privacy Policy.
11. Registration Data
11.1 The Customer shall provide current, complete, and accurate information when completing the online registration form ("Registration Data") and shall update the Registration Information to keep it up to date and accurate. The Customer warrants that it is authorised to provide such Registration Data.
11.2 The Company is permitted to verify the Registration Data at any time and retains the right, in its sole discretion, to suspend or terminate this Agreement and the Customer’s right to use its account. if any Registration Data is untrue, inaccurate, not current or incomplete.
12. Third Parties
Nothing contained in this Agreement is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
13. Force Majeure
13.1 If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, that party’s obligation to perform in accordance with the terms of this Agreement will be suspended.
13.2 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. If the Force Majeure event last for more than 28 days the non-defaulting party may terminate this Agreement with immediate effect without penalty.
14. Miscellaneous
14.1 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.
14.2 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.
14.3 The Customer may not assign, transfer or subcontract its rights under this Agreement without the prior written consent of the Company, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies or to any entity that purchases the Company or its assets.
14.4 The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
14.5 Neither party shall make any public statement, press release or other announcement relating to the terms or existence of this Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid the Company may use the Customer’s name and trademarks (logo only) to list the Customer as a client of the Company on its website and in other marketing materials and information.
14.6 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 to a party at the address given for that party in this Agreement; or (ii) to the email address of each party usually used to correspond within the Services for invoicing. Notwithstanding the aforesaid, 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 such 30 day period.
14.7 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.