Terms of Use and Sale for Businesses
Last Updated as of October 30, 2023
Introduction
Before using our services on behalf of a brand, we ask that you read these terms of use and sale for businesses (which we will simply refer to as the “terms” going forward) so that you understand what we expect from you - and also what you can expect from us.
Whether you want to use Thingtesting on behalf of a brand for free, or use our paid services, you’ll need to accept these terms so that it’s clear what your and our legal rights and obligations are. Your access and use of our services is, at all times, conditional on you agreeing to these terms. So, if at any time you do not agree, or cannot comply, with these terms, you must not access or use any of our services. To be clear, your use of our platform and/or services in any way, including via our free services or any trial, will be governed by these terms.
You agree to these terms by doing one or more of the following: (a) clicking a box or button confirming that you agree to these terms (or a similar confirmation); (b) signing or accepting a quote, order form or similar document which refers to these terms; (c) paying or accepting an invoice for a subscription to our paid services; or (d) claiming a brand page or accessing or using any of our services on behalf of a brand.
Joining and using Thingtesting
We explain below how to access and use our services and subscribe to our paid services, in each case on behalf of a brand or business.
You and Thingtesting: When we say “you” or “your”, we mean the brand, entity or business that you represent. When we say “Thingtesting”, “we”, “our” or “us”, we mean Thingtesting, Inc. and our affiliates. When we say “affiliate” we mean, with regard to a party, an entity or firm, controlling, controlled by, or under common control, whether directly or indirectly, with that party.
Our platform: when we say our “platform” we mean our review platform hosted at thingtesting.com, as well as any sub-domain, sub-directory, similar website, social media platform or other app operated by us.
Our services: Our “services” consist of the Thingtesting business offering, the review services, and any other services that we provide now or in the future, as may be described in these terms, in any quote, order form, invoice or other commercial documents or communications that we provide to you, or on our platform (collectively, “commercial materials”).
Brand page: If you want access to our services, then you or someone on your behalf needs to claim a brand page on our platform. By claiming a brand page, you (i) represent and warrant that (A) you are authorized to claim such brand page on behalf of the entity or business described therein (the “brand”); (B) all information on the brand page (including any information added and/or modified by you or any other authorized users (as defined below)) is true and correct in all respects and no such information violates any applicable law, including advertising laws; (C) no UGC (as defined below) included on such brand page (including any UGC that you upload on behalf of the brand) infringes the rights of any third party, including any intellectual property rights or rights of privacy or publicity; and (ii) grant to us and our affiliates a perpetual, worldwide, irrevocable, fully transferable, sublicensable license to reproduce, display, perform, transmit, distribute, modify, and otherwise use and exploit your brand IP (as defined below) and any such UGC included on the brand page or provided by you or the brand to us or any of our affiliates in any format and media (now known or hereinafter developed), including as such UGC is modified, for the purpose of operating, publishing, transmitting, marketing or promoting the brand and the platform.
Free plan: By claiming a brand page, you will be given access to a business account, through which you can use all of the services provided in our free plan. You may use these services unless and until your business account is deleted by you or access to it is terminated by us.
Subscriptions: If you subscribe to a Thingtesting Pro Plan or any other services that are not included in our free plan (a “subscription”), then you will also be able to access these services through your business account. The following points will also apply to you:
Subscription period: Your subscription may be monthly or annual – the specific duration of your subscription (“subscription period”) will be listed in the commercial materials that are issued or presented to you when you agree to purchase that subscription.
Subscription renewals: At the end of each subscription period, your subscription will automatically renew for a further subscription period unless we have agreed something different with you in your quote, order form or similar document, or you or we terminate your subscription - see the Termination and suspension section. If your subscription is not renewed, you will still have access to the services provided in our free plan.
Subscription renewal pricing: If we make any changes to the total non-discounted price of your subscription, we’ll make an effort to inform you at least 15 days before the next renewal date of your subscription period, which is when the new price will take effect. If we have given you a discount to our normal subscription prices, this discount may end when your subscription renews.
Domains: You represent and warrant that you (or one of your affiliates) own or have an exclusive right to operate the domain(s) that you claim on our site. If one of your affiliates owns or has an exclusive right to operate a domain that you claim, you represent and warrant that you have the authority to accept these terms in respect of such domain and to act on behalf of the entity or business described on the brand page associated with such domain.
Business account administrator: In the event you claim a brand page on our platform, you may be designated as the "administrator" of the business account for the entity or business described on the brand page associated with such domain. If you have been designated as the "administrator" for such business account, you take responsibility for fully controlling who administers and can access your business account, how it is managed and how you use our services. To the extent you continue to act as the "administrator" for such business account, you represent and warrant that you are fully authorized to (i) act on behalf of the entity or business associated with such account, (ii) designate additional authorized users (as defined below) of such account, and (iii) bind such entity or business to any subscription. For example:
You control access to your business account. You decide who is allowed to use and access the services available through your business account ("authorized users") and what kind of access each of those authorized users has. You can change or stop that access at any time.
You're responsible for all your authorized users' activity, their use of our services, and their compliance with these terms and our guidelines.
You represent and warrant that you'll keep your information (including a current email address) up to date.
You're responsible for providing true, accurate and complete information.
You're also responsible for protecting your username and password from getting stolen or misused.
You have the right to let your affiliates access and use our services under these terms, however, if you do so you are responsible for ensuring that your affiliates comply with these terms and our guidelines, and you are liable for their actions and omissions as if they were your own.
User roles and access: If you are an administrator, you should make sure to understand the permissions you’re granting to your authorized users. Each authorized user that you add to your business account is subject to these terms and our guidelines. You’re liable for each of your authorized user’s acts and omissions. It is up to you to ensure that each of your authorized users is fully aware of their obligations and restrictions under these terms and our guidelines.
Your key responsibilities: You must only use our services for the domains whose brand pages have been claimed by you or on your behalf (“claimed domains”) and in accordance with your applicable subscription, if any. You agree to use our services only for lawful business purposes and in line with these terms and our guidelines.
Guidelines: When accessing or using our services, you agree to respect and follow our community guidelines (“guidelines”). Please read them and make sure you understand what you should and shouldn’t do. These guidelines are very important because they outline, among other things, how you should (and shouldn’t) use our services. Much of it will be common sense and is designed to ensure we keep our platform a fair and trusted place for online reviews. We can update and make changes to the guidelines from time to time. Any changes to the guidelines will immediately apply to you without any further positive acceptance, confirmation or action by you.
What we each own: Our platform and the services we offer via the platform, including all underlying technology and intellectual property rights embodied therein, are and remain our sole and exclusive property, and no license or any other right is granted to any such underlying technology. If you provide feedback, ideas or suggestions regarding our platform or the services offered on the platform (“feedback”), we are free to fully exploit such feedback. The content on the platform, including but not limited to the intellectual property rights, text, characteristics, graphics, icons, photos, calculations, references and software is or will be our property or the property of a third party and is protected by U.S. and applicable international legislation, including without limitation applicable copyright and trademark laws. Unauthorized copying, distribution, presentation or other use of the platform or any part hereof is a violation of U.S. law and may thus result in civil and/or criminal penalties.
Notwithstanding the foregoing, you own your logo, brand name, trademarks and other intellectual property (“customer IP”). In addition to the license set forth in section 4 above, you agree that we have a right to use your customer IP for the purposes of providing, administering and ensuring the proper operation of the services, the platform and related systems, and to perform our rights and obligations under these terms.
User generated content: You hereby grant us the worldwide, non-exclusive, perpetual, irrevocable, royalty-free right and license to publish, display, reproduce, modify, create derivative works of and commercially exploit any material, information, notifications, reviews, articles, photographs, art, logos or other types of communication, including, without limitation, any review, reply to a review, image, video, publication or other content created by or originating from you, any consumer or other user of our services (hereinafter referred to as the "User-Generated Content" or "UGC"). We may freely use and transfer the UGC and disclose the UGC to third parties. By creating or posting any UGC on the platform, you expressly represent and warrant that you have the right to grant us the foregoing license and that such UGC does not infringe or violate the rights of any third party. You are liable for the UGC you publish on the platform. You warrant that all UGC posted on the platform is correct and true (where stating facts) or genuinely held (where stating opinions). Contributors of UGC warrant in every context that the UGC is lawful and in compliance with these terms. If we receive notice or otherwise become aware that UGC violates any applicable law, legal order or regulation and/or the terms, we may delete the UGC without any notice, and we (depending on the character of the violation) may inform the violated party and/or the authorities of the violation. Our right to delete UGC will not be conditioned on an explanation, although we may inform you about the deletion and the reason hereof. You hereby grant us the right to initiate and take any legal actions which we deem necessary in case of infringement of your UGC. You must guarantee to indemnify us for any claims which may be made against us as a consequence of your violation of the terms or current legislation. You must indemnify and hold us harmless from and against any claim or loss due to third party claims against us resulting from your UGC. We may at any time request information about the UGC from you, including documentation supporting the information included in the UGC. Unless UGC is removed by us for violating our guidelines, or removed by its author, all user generated content will remain publicly displayed on our services, our platform and any third-party services and networks (like Google) even after your subscription has ended or you delete your business account.
Problems and support: If you have a problem, you can find more information about online support for our services from our support team by contacting them at [email protected].
Impartiality: We love businesses using us to share, hear, and learn from their consumers through our role as an online intermediary. Your use of our services and the brand marks is not an approval, endorsement or recommendation by us of either you or your products or services. So you must not market yourself or give public declarations to that effect. Nothing in these terms is to be interpreted as constituting a partnership, joint venture, employment or agency relationship between you and us.
Display of names, logos, and reviews:
It is necessary for us to be able to identify the businesses that are reviewed on Thingtesting. Therefore, in a similar way to a directory or a phonebook, you give us the right to display your business name, logo and any UGC related to your brand on our platform in order to identify the services or products your business provides. We provide you with control over your brand page, which means that you are able to modify your name, logo and certain UGC created by you at your discretion.
Furthermore, when you create a business account and use our services you allow us to use your name, logo, UGC and examples and visuals of how you are using Thingtesting in the public domain (for example, on your website and in your ads) in corporate, promotional and marketing material and content in the normal course of business.
During your use of our services, you may display reviews of your business and our brand marks on your claimed domains, so long as you follow our guidelines.
Any other use or display of our brand marks or content on Thingtesting, including in offline or online advertising, is only permitted in accordance with our guidelines. We reserve the right to revoke your use of our brand marks at any time if we find your use to be in violation of our guidelines.
Don’ts: While we can’t cover everything here, here are some important examples of things you must never do:
Undermine the security or integrity of our platform.
Use our platform or services in any way that might impair functionality or interfere with other people’s use.
Knowingly misrepresent your brand or any material aspect thereof, provide any misleading UGC or other information designed to confuse Thingtesting or our other users, remove publicly available information from your brand page, or otherwise take steps to intentionally corrupt your brand page or hide it from users of the platform.
Access our platform or services without permission.
Introduce or upload anything to our platform or services that includes a virus or other malicious code.
Write, submit or procure fake reviews.
Do anything that may be misleading, offensive, violates any law, infringes on the rights of others or does not comply with our guidelines.
Modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of our platform or services.
Resell, transfer, license, lease or provide our services in any way not expressly permitted through our services.
Repackage, resell, or sublicense any data accessed through our platform or services.
Commit fraud or other illegal acts through our platform or services.
Act in a manner that is abusive or disrespectful to a Thingtesting employee, consultant, partner, user, or other Thingtesting brand or customer. We will not tolerate any abuse or bullying of our Thingtesting employees in any situation and that includes interaction with our support teams.
Remove any Thingtesting brand content or proprietary notices or labels from the platform or the commercial materials.
Use the platform, our services or the commercial materials for the purposes of providing any service or functionality which competes with the platform.
Pricing and Payments
Unless you’re using our free plan or on a free trial, you’ll need to pay to access and use our services. The price and any other terms that are specific to you are explained when you agree to purchase our services. Participation in our Exclusive Offer Program or Thingdrops are covered by these terms as well as specific terms and conditions associated with each program. You can find the Terms and Conditions for each program linked above.
Trials: You may be offered a trial of some of our services for a limited or short-term period as set out in the relevant commercial materials provided at the time. We can withdraw or modify your access to those services at our discretion without prior notice and with no liability. After the trial period, your access to those services may be removed in accordance with any terms or restrictions you are notified of at the time. If you want to continue using those services after the trial, you'll need a subscription.
Thingtesting subscriptions: We offer our business users access to our free plan which allows the use of a wide range of Thingtesting services. But to access a Pro Plan or some of our services, we require you to pay for one of the many subscriptions we offer. The subscription pricing may vary. The price and any other terms that are specific to your subscription are set out in the commercial materials that you accept when you agree to purchase that subscription. If you and us have agreed to make changes to the scope of your subscription during the subscription period (for example, adding another brand, domain or additional services), we may ask you to sign or accept updated commercial materials and in such a case, we reserve the right to increase the price accordingly.
Discounts: Any price discounts listed on a quote, order form or similar only apply for the subscription period specified on it, and we aren't obliged to continue offering that discount for successive subscription periods.
No refunds or credit: Unless we've specifically stated elsewhere in these terms, we will not owe you any refund or credit if you or we terminate your subscription in accordance with these terms.
Taxes for your use of our services: Our prices are stated exclusive of taxes. You're responsible for paying all other external fees and taxes associated with your use of our services wherever levied, including value added tax, sales tax or other similar charges if they apply.
Importance of timely payments: In order to continue accessing the services included in your subscription, you need to make timely payments based on the price of the subscription you selected. Unless your subscription order details say something else, the fees for each subscription period are owed to us upfront and will be billed automatically - and if we have issued an invoice to you, you must pay that within the number of days set out in the invoice. To avoid delayed or missed payments, please make sure we have accurate payment information. If we don't receive timely payments from you for your subscription, then we may suspend, or even end, your access to our services - see the Termination and suspension section. In cases of late payment for any unpaid amounts, we reserve the right to charge you interest on outstanding amounts, you will also be responsible for any costs reasonably incurred by us in collecting such amounts, including collection costs and legal fees.
Privacy and data use
We may receive and process personal data relating to your consumers and your authorized users, which we cover below. Please also read our privacy policy which provides more detail of how we handle personal data.
Privacy laws: You and us each agree to comply with all applicable data protection and privacy laws and regulations ("applicable privacy laws").
Invitation data: When you send (or, if applicable as part of your subscription, we send on your behalf) invitations to your consumers asking them to create a review on our platform about your services, your locations and/or your products, we are providing "review invitation services" to you. If the type of review invitation services we provide to you requires us to receive or process any personal data relating to those consumers ("invitation data") before they submit a review on our platform in response to an invitation, then:
these review invitation services will be provided to you by Thingtesting, Inc., who will at all times be the sole entity which has decision-making authority over, and determines the purposes and means of processing, invitation data;
our privacy policy apply to this processing activity;
you will be the “data controller” of such invitation data and we will be the “data processor” of such invitation data, and our data processing will be expressly subject to the terms of our data processing agreement and
You agree not to provide us with any PHI (as defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA)) in connection with the provision of services under these terms, but to the extent that you are acting as a Covered Entity under HIPAA and there is incidental disclosure of PHI about your consumers to Thingtesting and to the extent that Thingtesting, as a result, is deemed under HIPAA to be acting as a “Business Associate”, the disclosure of such PHI will be governed by our privacy policy; and you confirm that you will have all the rights, permissions and consents required by applicable privacy laws to provide us with any and all such data.
Other personal data: Personal data we collect about your authorized users or other people who represent you (including your employees) in connection with creating and administering your business account, providing customer services to you, or signing-up for our services and using them, will be handled by us in accordance with our privacy policy.
Security
Security is something we take seriously and you should too! You can read all about our practices in our privacy policy. We do what we can to keep your data secure but we need your cooperation to protect our services and your data.
Playing your part to keep your data secure: You have an important part to play by keeping your login details secure, not letting any other person use them, and by making sure you have strong security on your own systems. If you realize there's been any unauthorized use of your password or any breach of security to your account or email address linked to your account, you need to let us know immediately. You also agree not to use free-form fields in any of Thingtesting's systems or services to store personal data, (unless it's a field explicitly asking for personal data - like a first name or last name).
Confidential information
We take reasonable precautions to protect your confidential information and expect that you’ll do the same for ours.
Keeping it confidential: While using our services, you may share confidential information with us, and you may become aware of confidential information about us. You and we both agree to take reasonable steps to protect the other party's confidential information from being accessed by unauthorized individuals, entities or other third-parties. You or we may share each other's confidential information with legal, governmental or regulatory authorities if required to do so, or if required by law. We may also share your information on a similar confidential basis with our affiliates, our advisers, auditors and financiers, and any third parties carrying out due diligence on our business. Information will not be considered confidential if the recipient of the information already knew the information and it was not subject to confidential treatment, or the information is publicly available (but not as a result of a breach of this confidentiality section).
Termination and suspension
We explain below when your subscription and/or access to our services can be terminated or suspended.
Your termination rights:
If you have a subscription:
If you don’t want your subscription to automatically renew for any reason: If you don’t want your subscription to automatically renew at the end of a subscription period, you’ll need to tell us that by emailing [email protected] at least 30 days before the end of your current subscription period.
Even after you’ve told us, you’ll still have access to the services included in your subscription for the remainder of the current subscription period. If you haven’t already paid, you will still be responsible for paying all subscription fees for the whole of the current subscription period. Once your subscription period has ended, you will still have access to the services provided in our free plan. If you continue to use our services provided in our free plan after your subscription has ended, these terms will continue to govern your use of those free services.
Terminating your subscription immediately because of our material breach: You may terminate your subscription immediately if:
we materially breach any of these terms and do not remedy the breach within 14 days after receiving notice of the breach from you;
we materially breach any of these terms and the breach cannot be remedied; or
our service becomes permanently unavailable as a whole, in which case you will receive a pro-rata refund of any prepaid amounts related to the period after the date of termination.
If you terminate your subscription because of our material breach, you will immediately lose access to the services included in your subscription, but you will still have access to the services provided in our free plan. You won’t get a refund or credit for anything you have already paid - but if there are any subscription fees for the remaining part of the subscription period that have not yet become payable, then you won’t need to pay us those fees.
If you are on our free plan:
Deleting your business account and stopping use of our services: Other than sections of these terms which survive termination (see the Survival section), these terms will immediately terminate if you stop using our services and delete your business account.
Regardless of whether you have a subscription or are on our free plan, keep in mind that, if you terminate or delete your business account:
these terms will still apply to anything that happened before you terminated, and
the termination or deletion of your business account will have no impact on our right to continue displaying the brand page with which your business account was originally associated.
Our termination and suspension rights:
If you have a subscription:
If we don’t want to renew your subscription for any reason: We can terminate your subscription at the end of any subscription period by giving you at least 30 days’ notice before it ends.
You'll still have access to the services included in your subscription for the remainder of the current subscription period - and, if you haven't already paid, you will still be responsible for paying all subscription fees for the whole of the current subscription period.
Immediate termination by Thingtesting: Thingtesting may also terminate your subscription or access to your business account or all or any of our services immediately if:
you materially breach any of these terms and do not remedy the breach within 14 days after receiving notice of the breach;
you materially breach any of these terms and the breach cannot be remedied; for example, creating reviews on your own brand page, procuring fake reviews, misusing the review reporting functionality in your business account, inviting consumers to create reviews in a biased way, using the brand marks to mislead consumers, or claiming a brand page and/or acting on behalf of a business without authority;
in our discretion we think you have breached the guidelines;
in our discretion we think you have acted in a manner that is abusive or disrespectful to a Thingtesting employee, consultant, partner, user, or other Thingtesting customer, including during interaction with our support teams;
you fail to pay the full amount of your subscription on time;
you become insolvent or go into liquidation or have a receiver or manager appointed over any of your assets, you make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction;
your use of our services poses a security risk to our platform; or
in our discretion we determine that your business values or core beliefs are in conflict with ours (which we may refer to as a bad-fit business).
If you haven’t already paid, you will still be responsible for paying all subscription fees for the whole of the current subscription period (except when we’ve terminated because your business values or core beliefs conflicted with ours). If you have already paid then you will not be entitled to any refund or credit, except when we’ve terminated because your business values or core beliefs conflicted with ours, in which case we’ll refund the portion of the subscription fee that you’ve prepaid for the remaining part of your subscription period less any fees and/or expenses incurred by us in relation to your subscription.
Suspension: We may suspend all or part of your access and use of our platform and/or services if:
in our discretion we think that you are in breach of these terms;
in our discretion we think you have breached the guidelines, for example, after receiving a warning you continue to misuse the review reporting functionality or amend your company profile in a way we think misleads or may deceive consumers;
you fail to pay the full amount of your subscription on time;
in our discretion we think your use of our services poses a security risk to our platform.
You will remain responsible for all subscription fees incurred during the period of suspension and you will not be entitled to any refund or credit.
If you are on our free plan:
Immediate termination or suspension for any reason: We can terminate or suspend access to your business account and/or all or any of our services immediately at any time and for any reason.
For all users, whether you are on our free plan or have a subscription:
- Whether we terminate your subscription or access to your business account, these terms will still apply to anything that happened before we terminated.
Liability and indemnity
These sections are important as they outline responsibility and liability between us and you, so we urge you to read them closely and in full.
DISCLAIMER OF WARRANTIES:NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCLUDING ANY APPLICABLE IMPLIED CONDITION, GUARANTEE OR WARRANTY THE EXCLUSION OF WHICH WOULD CONTRAVENE ANY STATUTE OR CAUSE ANY PART OF THESE TERMS TO BE VOID (“NON-EXCLUDABLE CONDITION”), OUR SERVICES AND THE PLATFORM ARE MADE AVAILABLE TO YOU ON AN “AS IS” BASIS. WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE FURTHER DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, THAT OUR SERVICES AND/OR OUR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
LIMITATION OF LIABILITY:
If you have a subscription:
EACH PARTY AND ITS AFFILIATES HAVE NO LIABILITY TO ONE ANOTHER ARISING FROM YOUR USE OF OUR SERVICES AND/OR THESE TERMS FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OR CORRUPTION OF DATA, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR ANY OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL LOSS, DAMAGE OR EXPENSE (INCLUDING LEGAL COSTS).
WE AND OUR AFFILIATES ARE NOT RESPONSIBLE OR LIABLE FOR YOUR CONDUCT, ANY CONSUMER'S CONDUCT AND/OR ANY OTHER THIRD-PARTY'S CONDUCT ON OUR PLATFORM OR USE OF THINGTESTING SERVICES, INCLUDING ANY USER GENERATED CONTENT.
EXCLUDING EACH PARTY'S INDEMNITY OBLIGATIONS OUTLINED IN THE INDEMNITIES SECTION BELOW, EACH PARTY'S (AND EACH PARTY'S AFFILIATES') TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY IN ANY CIRCUMSTANCES IS LIMITED TO THE TOTAL AMOUNT YOU PAID US FOR OUR SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.
WE AND OUR AFFILIATES HAVE NO LIABILITY ARISING FROM YOUR USE OF OUR SERVICES AND/OR THESE TERMS FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OR CORRUPTION OF DATA, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR ANY OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL LOSS, DAMAGE OR EXPENSE (INCLUDING LEGAL COSTS).
WE AND OUR AFFILIATES ARE NOT RESPONSIBLE OR LIABLE FOR YOUR CONDUCT, ANY CONSUMER’S CONDUCT AND/OR ANY OTHER THIRD-PARTY’S CONDUCT ON OUR PLATFORM OR USE OF THINGTESTING SERVICES, INCLUDING ANY USER GENERATED CONTENT.
OUR AND OUR AFFILIATES’ TOTAL AGGREGATE LIABILITY TO YOU IN ANY CIRCUMSTANCES IS LIMITED TO THE TOTAL AMOUNT YOU PAID US FOR OUR SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.
OTHER THAN FOR A NON-EXCLUDABLE CONDITION AND/OR LIABILITY THAT WE OR YOU CAN’T EXCLUDE OR LIMIT UNDER APPLICABLE LAW, EACH PARTY’S LIABILITY (AND EACH PARTY’S AFFILIATES’ LIABILITY) TO ONE ANOTHER IN CONNECTION WITH OUR SERVICES AND/OR THESE TERMS, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED AS FOLLOWS:
If you are on our free plan:
OTHER THAN FOR A NON-EXCLUDABLE CONDITION AND/OR LIABILITY THAT WE CAN’T EXCLUDE OR LIMIT UNDER APPLICABLE LAW, OUR AND OUR AFFILIATES’ LIABILITY IN CONNECTION WITH OUR SERVICES AND/OR THESE TERMS, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED AS FOLLOWS:
Indemnity:
your use of our services (such as, but without limitation, the review invitations sent to your consumers, the writing, creation, submission or procurement of fake reviews, any content you provide, or any breach of our guidelines) or any user generated content created by you, originating from you or otherwise relating to you on our platform; and
your breach of applicable privacy laws (including, without limitation, any breach of your obligations regarding sending invitations to your consumers) or any act or omission by you which causes a data breach (as defined in Regulation (EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation) (the “GDPR”)) and/or places us in breach of applicable privacy laws.
You will pay us and each of our affiliates on demand the amount of all losses, costs (including reasonable legal costs), expenses, demands or other liabilities (whatever their nature and whether or not they are avoidable or foreseeable) that we or our affiliates incur or suffer arising out of, or in connection with:
The indemnification obligations set out in this Indemnity section are subject to the following: (i) the indemnified party shall provide the indemnifying party with prompt written notice of the third party claim or action; (ii) the indemnifying party shall have the option of assuming control over the defense and/or settlement of such claim; (iii) the indemnified party shall cooperate with the indemnifying party as reasonably requested; provided, however, that such cooperation is at the indemnifying party's sole cost and expense; and (iv) the indemnifying party shall not settle any claim or action on behalf of the indemnified party without first notifying the indemnified party of all details related to such settlement, and receiving the indemnified party's prior written consent.
Disputes
This section outlines how disputes may be resolved.
Dispute resolution: Most of your concerns can be resolved quickly and to everyone's satisfaction by contacting us through [email protected]. If you and we are not able to resolve the issue, you and we agree to bring claims only in the jurisdiction listed in the Our contracting entities and governing law section.
Important housekeeping
Please take a look over these additional terms.
Changes to these terms: We can make changes to these terms from time to time. We’ll try to let you know of material changes beforehand if we can - unless we need to make those changes immediately for reasons outside our control, like a change in law. If a change isn’t material, we may not notify you. It is up to you to ensure that you regularly check, read, understand and agree to the most recent version of these terms, as any changes to these terms will immediately apply to you without any further positive acceptance, confirmation or action by you.
Changes to our services: We may change or discontinue one or more of our services from time to time in our discretion. If we make material changes to the functionality of one of our services, you can contact us and, in our discretion, we’ll either refund the portion of the subscription fee for that service that you’ve prepaid for the remaining part of your subscription period - or give you credit that you can use during the remaining part of your subscription period towards other services that we provide.
Events outside our control: We do our best to control what we can. We or our affiliates aren’t liable to you for any failure or delay in performance of any of our obligations under these terms arising out of any event or circumstance beyond our reasonable control.
Notices: Any notice you send to Thingtesting must be sent to [email protected]. Unless we say otherwise in these terms, any notices we send to you will be sent to the email address you’ve provided to us through your business account.
Blocking your access, disabling your subscription, or refusing to process a payment: As our sites are global, different laws may apply in different countries that restrict our relationship with you. We may block your access, terminate your subscription, or refuse to process a payment if we reasonably believe there’s a risk - like a potential breach of a law or regulation - associated with you, your business, your subscription, or a payment. Examples of where we might do this include transactions where the payment is from a sanctioned person or country; or where we reasonably believe there is a legal or regulatory issue. You represent and warrant that you’re not located in a sanctioned country and are not on a sanctioned persons list. We may also stop users or business accounts from a country if we can’t receive payments from that country. You should check what payment methods are available in your country for making payments. We may take any of these actions without notice.
Transfer: We may assign, transfer or sub-contract any of our rights or obligations in these terms to any other entity or firm in our discretion. You may assign, transfer or subcontract your rights and/or obligations, but only with our advance written consent. Any change in the direct or indirect control of the domains receiving our services (by selling them or otherwise) will be treated as a transfer by you that requires our advance written consent.
Survival: Any section or part of a section that, by its nature, is stated or intended to survive expiry or termination of these terms will continue to apply to you and us even after the terms are terminated (including the Limitation of Liability and Indemnities sections).
Entire agreement: When you agree to these terms, they (and any commercial materials regarding your current subscription, if any) constitute the entire agreement between you and us in relation to its subject matter and supersede anything you and us may have previously discussed or agreed (including any previous version of these terms). Please note, however, that if you participate in our Exclusive Offer Program and/or Thingdrops, you will be subject to additional terms and conditions, links to which are provided above.
Language: We may provide certain commercial materials to you in another language but all other communications and notices made under these terms must be in English. If we provide a translation of these terms, it is for your convenience only and the English language version will take precedence. We will have no responsibility or liability in respect of the content or accuracy of any translated versions of these terms.
Enforcement of terms: If there's any part of these terms that either you or we are legally unable to enforce, that part will be ignored but everything else will remain enforceable.
Interpretation: Words like 'include', 'like', and 'for example' are not words of limitation and where anything is within our discretion, we mean our sole discretion.
Our contracting entities and governing law: These terms and any dispute or claim arising out of or in connection with them, their subject matter or their formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the state of New York.
Jurisdiction: You and we both irrevocably agree that the Courts of the State of New York, USA shall have exclusive jurisdiction to settle any such dispute or claim.
No waiver: Our failure to exercise, or delay in exercising, a right, power or remedy provided in these terms or by law will not constitute a waiver of that right, power or remedy. Our waiver of any obligation or breach of these terms shall not operate as a waiver of any other obligation or subsequent breach of these terms.
Conflicts: If there is any conflict or inconsistency between these terms and the commercial materials, the commercial materials will take precedence with respect to that conflict or inconsistency.