Terms of Service
Last Updated: April 27, 2022
- Content on the Services
1.1. In General. Any opinions expressed by the contributors, authors, and moderators who post Content (as defined below) to testware-assoc.com are the personal opinions of the authors, not of testware-assoc.com, whether or not the authors are employees or contractors of testware-assoc.com. The Content (as defined below) is provided for informational and entertainment purposes only and is not meant to be an endorsement or representation by testware-assoc.com or any other party.
1.2. Ownership. The Content on the Services is intended for your personal, non-commercial use only. Commercial use of any of the Content or Services is strictly prohibited. The Services and all materials published and/or distributed on or through the Services (including, but not limited to, news articles, photographs, images, illustrations, audio clips, and video clips) (collectively, the “Content”) are protected by copyright pursuant to U.S. and international copyright laws, and are owned or controlled by testware-assoc.com or the party credited as the provider of the Content. Except as set forth in Sections 1.3 and 5.4 of this Agreement, you may not modify, publish, transmit, adapt, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit any of the Content in whole or in part, without the express written consent of testware-assoc.com or the copyright owner identified in the copyright notice in the Content. You agree not to change or delete any proprietary notices that appear in the Content. You may not use any testware-assoc.com logo or proprietary graphic or trademark without testware-assoc.com’s express written permission. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Services. As between the parties, title, ownership rights, and intellectual property rights in the Content and Services, and any copies or portions thereof, shall remain in testware-assoc.com and/or its Content providers or licensors. testware-assoc.com reserves any rights not expressly granted in this Agreement.
1.3. Limited License. Subject to your strict compliance with this Agreement, testware-assoc.com grants you a limited, revocable, non-transferable, non-assignable and non-exclusive license to access, download (temporary storage only), display, view, use, play and/or print the Content (excluding, for purposes of this Section 1.3, Content accessed through testware-assoc.com Advanced Consulting and further excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet-enabled device, for your personal non-commercial use only, subject to the restrictions set forth in this Agreement. The foregoing limited license (A) does not give you any ownership of, or any other intellectual property interest in, any Content, and (B) may be immediately suspended or terminated for any reason, at testware-assoc.com’s sole discretion, and without advance notice or liability.
- User-Generated Content
2.1. Prohibited Actions. You are solely responsible for your communications on and your use of the Services. You agree not to do any of the following: (A) post or transmit any libelous, defamatory, indecent, obscene, fraudulent, deceptive, abusive, or pornographic message, data, image, content, or program; (B) post or transmit any message, data, image, Content, or program that would violate any property rights of others; (C) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (D) upload or download files that contain software, marks, logos, data, images, Content, or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law, unless you own or control the rights to such files or material, or have received all necessary consents; (E) upload files that contain a virus or corrupted data; (F) falsify the source or origin of software or other material contained in a file that you upload to the Services; (G) falsely purport to be an employee or agent of testware-assoc.com; (H) act, in your use of the Services, in a manner that is contrary to applicable law or regulation; or (I) circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content. testware-assoc.com does not represent or endorse any materials you post on your sites or products. testware-assoc.com does not review, cannot review, and is under no obligation to review the material that is using the Services provided.
2.2. testware-assoc.com’s Exclusive Right to Manage the User Submissions. You acknowledge that any materials and other information (including, without limitation, ideas contained therein for new or improved products or Services) you post, upload, or submit to the Services, including but not limited to comments, forum messages, reviews, text, video, audio, photographs, computer code, and applications (each, a “User Submission”) may be edited, removed, deleted, modified, published, transmitted, and displayed by testware-assoc.com in its sole discretion and without your permission, and you waive any rights you may have (including any moral rights) in preventing the material from being altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable, or restrict access to or the availability of any User Submissions from the Services at any time, for any reason, or for no reason at all. testware-assoc.com reserves the right to treat User Submissions as Content stored at the direction of users for which testware-assoc.com will not exercise control except to block or remove Content that comes to testware-assoc.com’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, libelous, defamatory, fraudulent, deceptive, misleading, or otherwise objectionable to testware-assoc.com, or to enforce the rights of third parties, or the Content restrictions set forth below in this Agreement when notice of their violation comes to testware-assoc.com’s attention. However, testware-assoc.com shall not be responsible for controlling or editing any Content, and testware-assoc.com has no contractual obligation to remove inappropriate or unlawful Content. Under no circumstances will we be held liable for removing, disabling, or restricting access to or the availability of Content.
2.3. License to testware-assoc.com of Your User Submissions. You hereby grant to testware-assoc.com, and you agree to grant to testware-assoc.com, a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, unconditional, unlimited, worldwide, and cost-free license to use, copy, record, disclose, sell, re-sell, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, broadcast, publicly perform, display, or otherwise exploit in any manner whatsoever, all or any portion of your User Submissions (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses, and to advertise, market and promote the same. In order to further effect the rights and license that you grant to testware-assoc.com to your User Submissions, you also hereby grant to testware-assoc.com, and agree to grant to testware-assoc.com, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, image, photograph, and likeness that you provide in connection with any User Submission, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Submissions, even if your User Submissions are altered or changed in a manner not agreeable to you. You agree that you shall have no recourse against testware-assoc.com for any alleged or actual infringement or misappropriation of any proprietary right in your User Submissions. You further acknowledge and agree that no compensation will be paid with respect to the use of your User Submissions or any of the rights granted in this Section 2.3.
2.4. Representations and Warranties Related to Your User Submissions. Each time you submit a User Submission, you represent and warrant that, as to that User Submission, (A) you are the sole author and owner of the intellectual property and other rights to the User Submission, or you have a lawful right to submit the User Submission and grant testware-assoc.com the rights to it that you are granting by this Agreement, all without any testware-assoc.com obligation to obtain consent of any third party and without creating any obligation or liability of testware-assoc.com; (B) the User Submission is accurate; (C) the User Submission does not and, as to testware-assoc.com’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; (D) the User Submission will not violate this Agreement or cause injury or harm to any person; and (E) the User Submission complies with all applicable laws and regulations.
2.5. Responsibility of Users. You are entirely responsible for the content of, and any harm resulting from, your User Submissions. testware-assoc.com does not assume any responsibility or liability for any User Submissions posted on the Services or any website linked to the Services, and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of the User Submissions.
2.6. Non-Confidentiality of Your User Submissions. The Services are available to the public, and your User Submissions, along with information concerning your identity that you provide to testware-assoc.com (including your name, image, employer, and location), may be publicly available. Do not post information you consider confidential to the Services. In addition, you agree that testware-assoc.com may reveal your identity and whatever information we know about you to any law enforcement agent or official in the event of legal action or a legal request arising from any User Submission made by you.
2.7. Unsolicited Email, Spamming & Spoofing. You may not use the Services to transmit unsolicited email. You may not send unsolicited email to the Services or to anyone whose email address includes a domain name used on the Services. You may not use any domain name on our Services as a pseudonymous return email address for any communications which you transmit from another location or through another service. You may not pretend to be someone else – or spoof their identity – when using the Services.
- Links to Third-Party Websites
- Copyright or Intellectual Property Infringement Notification
If you believe in good faith that material or Content available on testware-assoc.com infringes a copyright or other intellectual property right that you own or for which you are a beneficial owner or exclusive licensee, you are encouraged to notify testware-assoc.com in accordance with testware-assoc.com’s Copyright or Intellectual Property Infringement Notification Policy, currently accessible at https://npdigital.com/copyright/. It is our policy to terminate, in appropriate circumstances, the access rights of repeat infringers.
- Additional Terms Applicable to Users of testware-assoc.com Advanced Consulting
5 .1. In General. testware-assoc.com offers the opportunity to sign up to obtain enhanced Content and features through testware-assoc.com Advanced Consulting. By using or accessing any products, Content, features, Services or events offered through testware-assoc.com Advanced Consulting, you agree to be bound by the terms and conditions of this Section 5, which are specific to use of testware-assoc.com Advanced Consulting and shall not apply to the use of any of the Services other than testware-assoc.com Advanced Consulting.
5.2. testware-assoc.com Advanced Consulting Account. In order to access certain features of testware-assoc.com Advanced Consulting, you will be required to create an online account (the “Premium Account”). You agree to: (A) take reasonable measures to maintain the security of your user identification, password and other information relating to your Premium Account; (B) refrain from sharing your Premium Account password or from allowing access to your Premium Account by any third party; (C) be solely responsible for the security, confidentiality, legality and integrity of all messages and Content that you receive, transmit or store using testware-assoc.com Advanced Consulting and the Premium Account; (D) be responsible for all charges resulting from use of your Premium Account, including unauthorized use prior to your notifying testware-assoc.com in writing of such use and taking steps to prevent its further occurrence, including by changing your password; (E) comply with the terms and conditions set forth herein; and (F) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of testware-assoc.com Advanced Consulting.
5.3. Fees; Payment Terms; Account Cancellation.
testware-assoc.com charges a subscription fee (“Fees”) for the use of testware-assoc.com Advanced Consulting. By registering for a Premium Account, you agree to pay testware-assoc.com the Fees applicable to the account level chosen. Unless otherwise stated, all Fees are in U.S. Dollars. testware-assoc.com expressly reserves the right to change the Fees at any time, upon 30-days written notice to you at your registered email address. The Fees do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use testware-assoc.com Advanced Consulting, which shall be your sole responsibility. All Fees will be billed to your credit card at the current international currency conversion rate. You are responsible for and shall pay testware-assoc.com all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, “Taxes”) for the use of testware-assoc.com Advanced Consulting, whether imposed now or hereinafter by any governmental entity. For any upgrade or downgrade in plan level that you elect, your credit card will automatically be charged the new rate on your next billing cycle.
All Fees are paid in advance and are refundable for 30 days of the initial purchase unless otherwise stated by a contract between testware-assoc.com and the customer. After the 30-day period, there will be no refunds or credits for partial months of service, upgrades/downgrades, or for months when you did not use testware-assoc.com Advanced Consulting. We reserve the right to deactivate your access to testware-assoc.com Advanced Consulting if you fail to pay applicable fees. You must provide current, complete, and accurate billing information. You must promptly update all billing information to keep your account current, complete, and accurate (such as by furnishing a new billing address, credit card number or expiration date), and you must promptly notify testware-assoc.com if your credit card is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. You agree to promptly pay testware-assoc.com in the event of any refusal of your credit card issuer to pay any amount to testware-assoc.com for any reason. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In the event you fail to pay any amount when due, testware-assoc.com may immediately suspend or terminate this Agreement and your access to testware-assoc.com Advanced Consulting.
5.4. Limited License to testware-assoc.com Advanced Consulting Users. Subject to your strict compliance with this Agreement, testware-assoc.com grants you a limited, revocable, non-transferable, non-assignable and non-exclusive license to use the Content available on testware-assoc.com Advanced Consulting (the “testware-assoc.com Advanced Consulting Content”) as described below. You may:
Incorporate, on a non-systematic and non-routine basis, a small excerpt of the testware-assoc.com Advanced Consulting Content (e.g., a few lines of text, a paragraph, a specific graphic, chart or graph) within a report or presentation that is distributed to an audience that is internal to the company for which you are employed (“your company”), as long as you attribute testware-assoc.com Advanced Consulting as the source.
Briefly summarize, on a non-systematic and non-routine basis, testware-assoc.com Advanced Consulting Content in your own words, and distribute the summary to an audience that is internal to your company in connection with a specific project, as long as you attribute testware-assoc.com Advanced Consulting as the source.
Distribute, in digital or hard copy, testware-assoc.com Advanced Consulting Content for which you have purchase reprint rights, to audiences inside or outside your company.
If your Premium Account was obtained under an enterprise license made by your company, distribute testware-assoc.com Advanced Consulting Content in accordance with the terms of that license.
Except as expressly provided in this Section 5.4, you may not post or otherwise distribute testware-assoc.com Advanced Consulting Content (e.g. via hard copy, email, and/or posting on intranet, company bulletin boards or other information storage & retrieval systems). The foregoing limited license (A) does not give you any ownership of, or any other intellectual property interest in, any testware-assoc.com Advanced Consulting Content, and (B) may be immediately suspended or terminated for any reason, in testware-assoc.com’s sole discretion, and without advance notice or liability.
- Operation of the Services
- DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED BY testware-assoc.com. ON AN “AS IS” BASIS. testware-assoc.com MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SERVICES, INCLUDING THE ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY CONTENT ON THE SERVICES. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, testware-assoc.com DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THAT ACCESS TO OR USE OF THE SERVICES WILL BE SECURE, ACCESSIBLE CONTINUOUSLY, UNINTERRUPTED OR ERROR-FREE. testware-assoc.com MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, LOSSES (INCLUDING LOSS OF DATA), OR THAT FILES AVAILABLE FOR DOWNLOAD FROM THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND, WHERE APPLICABLE, TERMINATE YOUR PREMIUM ACCOUNT. TO THE EXTENT THAT YOU MIGHT OTHERWISE BELIEVE THAT ANY WARRANTIES, GUARANTEES OR REPRESENTATIONS HAVE BEEN MADE TO YOU, YOU HEREBY AGREE THAT SUCH STATEMENTS, WHETHER MADE ORALLY OR IN WRITING, ARE TO BE CONSTRUED AS MERELY NONBINDING EXPRESSIONS OF POLICY RATHER THAN AFFIRMATIVE REPRESENTATIONS, OBLIGATIONS, GUARANTEES OR WARRANTIES. IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION 8 AND OTHER TERMS OR PROVISIONS OF THIS AGREEMENT, THIS SECTION SHALL BE CONSTRUED TO TAKE PRECEDENCE.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL testware-assoc.com, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, OR ITS AGENTS BE LIABLE UNDER ANY THEORY OF LAW FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE SERVICES, OR RESULTING FROM USE OF OR RELIANCE ON THE CONTENT, EVEN IF testware-assoc.com MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. testware-assoc.com, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, AND ITS AGENTS’ ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIMS FOR DAMAGES RELATED TO THIS AGREEMENT WHICH ARE MADE AGAINST THEM, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF CHARGES PAID BY YOU RELATIVE TO THE PERIOD OF OCCURRENCE OF THE EVENTS WHICH ARE THE BASIS OF THE CLAIMS, BUT SHALL UNDER NO CIRCUMSTANCES EXCEED THE AMOUNT EQUAL TO THE PAYMENTS MADE BY YOU OVER THE PRIOR TWELVE MONTHS.
The Services are controlled and offered by testware-assoc.com from its facilities in the United States of America. testware-assoc.com makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS testware-assoc.comtestware-assoc.com, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT BY YOU OR ANY USER SUBMISSION POSTED OR SUBMITTED BY YOU (INCLUDING BUT NOT LIMITED TO INFRINGEMENT OF THIRD PARTIES’ WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT).
- WAIVER AND RELEASE
YOU AGREE THAT NEITHER testware-assoc.com,Site Name NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE testware-assoc.comtestware-assoc.com SERVICES. YOU SPECIFICALLY ACKNOWLEDGE THAT testware-assoc.comtestware-assoc.com SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST testware-assoc.com**, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF testware-assoc.comtestware-assoc.com, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SERVICES.
- Modifications / Termination
11.1. In General. Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (A) by obtaining our written consent in a notarized agreement signed by an officer of testware-assoc.com; or (B) as set forth below in Section 13.2.
11.2. Periodic Revisions. You agree that we may modify the terms of this Agreement from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. Any modifications made will be effective on the date published on the website. We will notify you of any material revisions or modifications to this Agreement by: (1) posting a notice on the npdigital.com website for thirty (30) days following any revisions or modifications to this Agreement and/or by posting a notice on npdigital.com the first time that you visit npdigital.com following such revisions or modifications; or (2) through a direct communication to you by email, if you have provided an email address to us. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after having been notified of such revisions or modifications by email or, if you have not been notified by email, after the passage of thirty (30) days from the time the revised terms and conditions are first posted on npdigital.com (whichever is sooner). If you do not provide us with a valid email address to send you information concerning revisions or modifications to this Agreement, then you agree that you will not receive notice by email. If you change email accounts, it will be your responsibility to notify us of a new valid email address in order to receive email notice. We assume no responsibility for your failure to actually receive notice. It is your responsibility to review this page for possible modifications. If you do not agree with the revisions, you may choose to discontinue use of the Services.
- Arbitration Clause
12.1 Individual Arbitration as Sole Remedy for Dispute Resolution.
- Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final and binding individual (not class, representative, nor collective) arbitration in San Diego, California before one arbitrator. The language to be used in the arbitral proceedings will be English. The arbitration shall be administered by the Office of Judicial Arbitration and Mediation Service (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. JAMS’s rules governing the arbitration may be obtained from JAMS’s website, which currently is www.jamsadr.com. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- If you are not a resident of the United States, then any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by final and binding individual arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator. The place of arbitration will be San Diego, California. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.2 Negotiation in Advance of Arbitration
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between persons who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for the administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after the delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of the persons described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations if desired. All offers, promises, conduct, and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts, and attorneys are confidential, privileged, and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 1 above.
12.3 Requirements for Modification or Revocation. This agreement to arbitrate shall survive the termination of testware-assoc.com’s relationship with you. It can only be revoked or modified by a writing executed by testware-assoc.com and you that specifically states an intent to revoke or modify this agreement to arbitrate.
12.4 Claims Covered by Arbitration Clause. testware-assoc.com and you mutually consent to the resolution by final and binding arbitration of all claims or controversies (collectively, the “Claims”) that testware-assoc.com may have against you or you may have against testware-assoc.com or against its past, present, or future predecessors, successors, assigns, affiliates, parent and subsidiary companies, and joint ventures, and their respective past, present, or future officers, directors, employees, stockholders, representatives, managers, members, partners, agents, advisors, insurers, and indemnities (collectively referred to as the “testware-assoc.com Parties”), relating to, resulting from, or in any way arising out of your relationship with testware-assoc.com. The Claims include, but are not limited to claims for penalties, fines, claims for breach of any contract (express or implied); tort claims (including, but not limited to, those relating to reputation); claims for violation of trade secret, proprietary, or confidential information laws; claims for unfair business practices; and claims for violation of any public policy, federal, state, international, or other governmental law, statute, regulation, or ordinance.
12.5 Required Notice of Claims and Statute of Limitations. testware-assoc.com may initiate arbitration by serving or mailing a written notice to you at the last known address. You may initiate arbitration by serving or mailing a written notice to testware-assoc.com. The written notice must specify with reasonable particularity the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable federal or state law. After the demand for arbitration has been made by serving written notice, the party demanding arbitration shall file a demand for arbitration with the Office of Judicial Arbitration and Mediation Service (“JAMS”) located in San Diego, California.
12.6 Selection of Arbitrator. Within 30 days after the commencement of arbitration, testware-assoc.com shall select one person from the JAMS panel to act as arbitrator. The arbitrator shall serve as a neutral, independent, and impartial arbitrator.
12.7 Confidentiality. The parties shall maintain the confidential nature of the arbitration proceeding and the award, if any, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
12.8 Dispositive Motions. In any arbitration arising out of or related to this Agreement:
Any party wishing to make a dispositive motion shall first submit a brief letter (not exceeding five pages) explaining why the motion has merit and why it would speed the proceeding and make it more cost-effective. The other side shall have a brief period within which to respond.
Based on the letters, the arbitrator will decide whether to proceed with more comprehensive briefing and argument on the proposed motion.
If the arbitrator decides to go forward with the motion, he/she will place page limits on the briefs and set an accelerated schedule for the disposition of the motion.
Under ordinary circumstances, the pendency of such a motion will not serve to stay any aspect of the arbitration or adjourn any pending deadlines.
12.9 Document Requests. In any arbitration arising out of or related to this Agreement, requests for documents:
Shall be limited to documents that are directly relevant to significant issues in the case or to the case’s outcome;
Shall be restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; and
Shall not include broad phraseology such as “all documents directly or indirectly related to.”
13.10 E-Discovery. In any arbitration arising out of or related to this Agreement:
There shall be the production of electronic documents only from sources used in the ordinary course of business. Absent a showing of compelling need, no such documents are required to be produced from backup servers, tapes or other media.
Absent a showing of compelling need, the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format that is usable by the party receiving the e-documents and convenient and economical for the producing party. Absent a showing of compelling need, the parties need not produce metadata, with the exception of header fields for email correspondence.
The description of custodians from whom electronic documents may be collected shall be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute.
Where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator will either deny such requests or order disclosure on condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award.
13.11 Interrogatories and Requests to Admit. In any arbitration arising out of or related to this Agreement, there shall be no interrogatories or requests to admit.
13.12 Depositions. In any arbitration arising out of or related to this Agreement, each side may take three (3) discovery depositions. Each side’s depositions are to consume no more than a total of fifteen (15) hours. The total period for the taking of depositions shall not exceed six (6) weeks.
13.13 Governing Law and Arbitrator Authority.
Except as otherwise provided herein, this Agreement and the rights of the Parties hereunder shall be governed by and construed in accordance with the laws of the state of California, exclusive of conflict or choice of law rules.
The Parties acknowledge that this Agreement evidences a transaction involving interstate or international commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitrator shall apply the substantive laws (and the law of remedies, if applicable) of the state of California, federal law, or international law, as applicable to the claim(s) asserted.
The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable and issues of arbitrability of any matter herein.
The arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.
13.14 Arbitration Decision. The arbitrator’s decision shall be final and binding and shall not be subject to appeal. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Any decision or award made by the arbitrator shall be enforceable by a court of competent jurisdiction. The parties irrevocably stipulate to the confidential nature of the arbitral award and proceedings and further stipulate that the award and any papers of the proceedings shall only be filed with a court of competent jurisdiction under confidential seal and only to enforce an arbitral award or decision.
13.15 Application for Emergency Injunctive and/or Other Equitable Relief. JAMS Comprehensive Rules shall apply for the appointment of an Emergency Arbitrator to address and decide a request for emergency relief.
13.17 WAIVER OF JURY TRIAL/EXCLUSIVE REMEDY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION REWARD IS LIMITED. BY AGREEING TO ARBITRATION, testware-assoc.comAND YOU ARE AGREEING TO WAIVE ANY CONSTITUTIONAL RIGHT TO A JURY OR COURT TRIAL OF COVERED CLAIMS. testware-assoc.com AND YOU FURTHER AGREE THAT IF FOR ANY REASON ANY SUCH DISPUTE OR CLAIM PROCEEDS IN COURT RATHER THAN ARBITRATION, THE PARTIES WAIVE ANY CONSTITUTIONAL RIGHT TO A JURY OR COURT TRIAL.
13.18 Arbitration Fees and Costs. Each party shall advance its own costs and expenses in any such arbitration and one-half (1/2) of the arbitrator’s fees and costs, however, the arbitrator shall award attorneys’ fees and costs to testware-assoc.com if testware-assoc.com is the prevailing party. Any decision or award of the such arbitration proceeding shall be confidential and may be made public only with the prior written consent of both you and testware-assoc.com.
13.19 Severability (Arbitration Clause). testware-assoc.com and you agree and acknowledge that if any section, subsection, sentence, clause, or phrase contained in this Arbitration Clause is found to be invalid, unenforceable, or otherwise inoperative, such decision shall not affect the validity of the remaining portion(s) of this Arbitration Clause.
13.20. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim in small claims court.
- Force Majeure
Neither Party is liable for any default, delay, or failure in the performance of any of its obligations under these Terms of Services (other than failure to make payments when due) caused directly or indirectly by circumstances beyond such Party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, acts of war or terrorism, pandemic, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such Party to perform its obligations hereunder.
Initially, the force majeure event or unforeseeable circumstance shall have the effect of suspending performance hereof.
If the force majeure event or unforeseeable circumstance lasts for more than three (3) months and unless the Parties agree otherwise, these Terms of Service shall be terminated automatically, without the need to seek a court ruling, serve formal notice or provide prior notice. In such event, the Parties shall not be held liable for the total or partial non-performance of their obligations hereunder.
If any provision of this Agreement shall be deemed invalid, illegal, or unenforceable, this Agreement shall be construed as though such invalid, illegal, or unenforceable provision was not included. The remainder of this Agreement shall nevertheless remain in full force and effect.
testware-assoc.com may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your testware-assoc.com account or by written communication delivered by first class U.S. mail to your address on record. You may give notice to testware-assoc.com at any time via electronic mail to the following address: [email protected].
testware-assoc.com may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. This Agreement is not assignable, transferable or sub-licensable by you except with testware-assoc.com’s prior written consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind testware-assoc.com in any respect whatsoever. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control of affect the meaning or construction of any provision of this Agreement.
- Complete Agreement