Terms of Service
Last updated: April 18, 2016
The following Terms of Service (“Terms”) govern the use of and access to the Mirror Service operated and provided by Testfire Inc. (“Testfire”), whether in connection with a paid subscription to the Service or a free trial of the Service. Your right to access and use the Service is expressly conditioned on acceptance of these Terms.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY USING THE MIRROR SERVICE, OR BY EXECUTING A SUBSCRIPTION ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS. THE TERMS AND THE APPLICABLE SUBSCRIPTION ORDER SHALL BE COLLECTIVELY KNOWN AS THE “AGREEMENT.”
1.1 “Agents” means the individual customer service agents who are authorized to use the Mirror Service, for whom subscriptions to the Mirror Service have been ordered, and who have been supplied user identifications and passwords by Customer or by Testfire at Customer’s request.
1.2 “End Users” means any person or entity other than the Customer or Agents with whom Customer or its Agents interact using the Service.
1.3 “Customer App(s)” means the mobile application(s) of Customer.
1.4 “Fees” means the Service fees payable by Customer as described in the Subscription Order.
1.5 “Mirror Integration Code” means the software (including without limitation code and scripts) downloadable by Customer from the Site that is configured by Customer and included in the Customer App(s) to enable data to be transmitted from the Customer App(s) to the Mirror Platform and the documentation therefore.
1.6 “Mirror Materials” means all materials created, developed and provided to Customer in connection with or arising from the Service or the Agreement, including, but not limited to, all ideas, concepts, inventions, systems, platforms, software (including the Integration Code), interfaces, tools, utilities, templates, forms, report formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used in providing the Service and Results (including any correction, improvement, derivative work, extension or other modification to the Service made, created, conceived or developed by, including at Customer’s request or as a result of feedback provided by Customer).
1.7 “Mirror Platform” means the hosted service made available through the Site and the documentation therefore, including but not limited to the Mirror Integration Code, Mirror Mobile App, Mirror Site, and Mirror Browser Extension.
1.8 “Service” or “Mirror Service” means the Mirror Platform and associated services and functionality to which Customer has subscribed, whether made available to Customer on a trial or paid basis.
1.9 “Site” means the Mirror website located at https://mirror.me, including without limitation all sub-domains thereof.
1.10 “Subscription Order” means the physical, electronic or online order form, as applicable, which further describes the Service purchased by Customer.
1.11 “We,” “Us” or “Our” means the company Testfire Inc, which operates and provides the Mirror Service.
2. GENERAL CONDITIONS
2.1 Software Trial. We may make one or more Mirror Services available to Customer on a trial basis free of charge. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL THE MIRROR SERVICES ARE PROVIDED “AS-IS”, “AS-AVAILABLE”, WITHOUT ANY WARRANTY WHATSOEVER.
2.2 Mirror Platform. Customer is hereby granted the non-transferable, non-exclusive right and license during the Term (defined in Section 6.1) to access and use the Mirror Platform in a manner consistent with the Subscription Order that Customer has subscribed to, for Customer’s internal business purposes. Customer may not use the Service to provide customer service, support or other outsourced business process services to more than one third party through a single Account.
2.3 License Restrictions. Customer shall have no rights or licenses with respect to the Service or the Mirror Materials except as expressly provided in the Agreement. Without limiting the generality of the foregoing, except as expressly provided in the Agreement, Customer may not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service or the Mirror Materials; (b) make the Service or Mirror Materials available to any third party; (c) use the Service or the Mirror Materials on a service bureau basis; (d) to the extent valid under applicable law, decompile, reverse engineer, or disassemble the Service or the Mirror Materials; (e) alter or modify the Mirror Integration Code other than as may be reasonably necessary to use the Service for its intended purposes; (f) create derivative works based on the Service or Mirror Materials; (g) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or the Mirror Materials or during the use and operation of the Service or the Mirror Materials or (h) use the Service, Mirror Materials or any of Our Confidential Information (as defined below) to create any service, software or documentation that is substantially the same or has similar functionality as the Service.
2.4 Use and Usage. Customer is responsible for compliance with the provisions of these Terms by Agents and End Users and for any and all activities that occur under Customer’s Account. Access to and use of the Service is restricted to the specified number of individual Agents permitted under Customer’s subscription to the Service. Customer agrees and acknowledges that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. Customer will not share an Agent Login among multiple individuals. Customer and its Agents are responsible for maintaining the confidentiality of all Login information for Customer’s Account.
2.5 Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and We (and Our licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service, Mirror Materials, aggregate data, and analyses.
3.1 Data Rights. In connection with the operation of the Service, Testfire collects data regarding Customer’s use of the Service (“Customer Data”) and End Users use of the Customer App(s) or Mirror Service (“Service Data”). Customer grants Testfire the right to use, reproduce and distribute the Customer Data and Service Data in connection with Customer’s use of the Service. Customer further grants Us the right to use, reproduce and distribute Customer Data and Service Data when it is aggregated with other information and not specifically identifiable to Customer or any End-User solely for the purpose of publishing industry reports on various metrics of interest (e.g. average livestream time for post-sales versus pre-sales support). We also reserve the right to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Service or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer).
3.2 Data Processing. In connection with the operation of the Service and this Agreement, Customer agrees that Customer serves as the data controller and retains full responsibility for any data processed through the Services on its behalf by Testfire, who acts as the data processor. To the extent that We receive or are otherwise granted access to any End-User personal data while providing the Services, We agree to (i) use such personal data solely for the purposes of providing the Service to Customer; (ii) process the personal data only in accordance with Customer’s instructions, which, unless expressly stated otherwise in a mutually agreed upon amendment to this Agreement, are represented in the form of this Agreement; and (iii) implement and maintain technical and organizational controls designed to prevent the unauthorized access or processing of personal data.
3.3. Service Data. Testfire does not own and specifically disclaims any responsibility for any data that Customer and End Users may submit, transmit, collect, post, store or produce while using the Service. Customer has sole responsibility for the accuracy, integrity, reliability, appropriateness and right to use any and all Service Data. We have no obligation to monitor any information stored or shared through the Services and are not responsible for the accuracy, appropriateness or legality of any files, posts, links or other information Customer may be able to view, share or access while using the Services. We shall not view, access, edit or process any Service Data except as necessary to provide the Services to Customer, as agreed in this Agreement or as required by applicable law. Customer shall apply adequate technical and organizational measures to keep its own Service Data secure.
3.4 Data Recording. Certain Services allow for a recording feature whereby the Customer can record audio and visual data between its Agents and End Users. Customer understands that use of this recording feature may subject Customer to laws or regulations regarding the recording of telephone calls and other electronic communications, and that it is Customer’s responsibility to properly notify all participants in a recorded session that the session is being recorded. We will not be held liable for Customer’s failure to do so. Although features may exist in the Service to alert participants that a session is being recorded, such notice may not be relied upon as definitive disclosure for Customer’s compliance with applicable laws.
3.5 International Use. The Service is controlled and offered from facilities in the United States, and the Service’s servers and data centers are located in the United States. If Customer chooses to access and use the Service from outside the United States, then Customer acknowledges that Customer is transferring Customer Data and Service Data into the United States for storage and processing and that Customer is responsible for compliance with all local laws applicable to such transfer, storage and processing.
4.1 Account Registration. In order to use the Service, Customer will have to register for an account on the Site. Customer agrees that the information Customer provides to Testfire upon registration and, at all other times, will be true, accurate, current, and complete. Customer also agrees that Customer will ensure that this information is kept accurate and up-to-date at all times. We reserve the right to refuse registration of, or to suspend or cancel, Login credentials used by Customer to access the Service for any reason, including if Customer violates the terms and conditions set forth in these Terms.
4.2 Authorized Accounts. Customer may create accounts with unique Login credentials for designated Agents to access and use the Service on Customer’s behalf. Customer is solely responsible at all times for (a) ensuring that all of Customer’s accounts are used solely in accordance with the Agreement, (b) maintaining the confidentiality of all Login credentials for Customer’s accounts, and (c) for the acts or omissions of any person accessing the Service using any of Customer’s accounts.
5. FEES; PAYMENT
Customer agrees to pay Testfire all Fees due with respect to Customer’s use of the Service as specified in the Subscription Order. All Fees are payable in the currency specified in the Subscription Order. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to the Agreement, other than taxes based on Our net income. All Fees are non-refundable except as otherwise provided herein.
￼6. TERM; TERMINATION
6.1 Term. The “Term” of the Agreement is set forth in the Subscription Order. If no Term is set forth in the Subscription Order, the term of the Agreement shall commence on the Effective Date and continue for twelve (12) months.
6.2 Termination for Cause. Either party may terminate the Agreement effective on written notice if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice of the breach from the non-breaching party.
6.3 Effect of Termination. Sections 1, 3, 5, 6.3, 7, 8, 9, 10, 11.2 and 12 of the Terms and all obligations that accrued prior to the effective date of termination and all remedies for breach of these Terms shall survive expiration or termination of the Agreement. Upon termination or expiration of the Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Service, and at Our request, return or destroy all of Our Materials, and certify such return or destruction in writing. Within 30 days after the effective date of termination of a Subscription Order, We shall permanently delete any Customer Data and Service Data, and have no obligation to maintain or provide any Customer Data or Service Data.
7. WARRANTY DISCLAIMERS
THE MIRROR SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TESTFIRE AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (COLLECTIVELY, THE “TESTFIRE ENTITIES”) MAKES NO WARRANTY (I) THAT THE SERVICE, MIRROR MATERIALS OR RESULTS WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES, OR (III) THAT ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED. THE TESTFIRE ENTITIES FURTHER DOES NOT REPRESENT OR WARRANT THAT THE MIRROR SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DO THE TESTFIRE ENTITIES WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICE. THE TESTFIRE ENTITIES HEREBY DISCLAIM (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Customer shall indemnify, defend, and hold harmless the Testfire Entities from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with (a) such Customer’s use of the Service or the Mirror Materials, (b) such Customer’s actual or alleged infringement or misappropriation of the rights of any third party, including, without limitation, any intellectual property rights, privacy rights or publicity rights; and (c) such Customer’s breach of any representations and warranties set forth in the Agreement. Customer is solely responsible for defending any Claim against the Testfire Entities, subject to such Testfire Entities’ right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against the Testfire Entities, provided that such Customer will not agree to any settlement related to any Claims without the Testfire Entities’ prior express written consent regardless of whether or not such settlement releases the Testfire Entities from any obligation or liability.
9. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 8 (INDEMNIFICATION), OR ANY BREACH OF SECTION 2 (GENERAL CONDITIONS), SECTION 3 (DATA) OR SECTION 10 (CONFIDENTIALITY), NEITHER CUSTOMER NOR THE TESTFIRE ENTITIES SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL THE TESTFIRE ENTITIES BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF FIFTY DOLLARS ($50.00). THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
10.1 Confidential Information. “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, (i) which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, (ii) if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within fifteen (15) days of the disclosure or (iii) that is of a nature that should reasonably be considered to be confidential or proprietary. In the case of Testfire, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
10.2 Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under the Agreement. Except as otherwise permitted expressly by the Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of the Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the provisions of the Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
11. SPECIFIC TERMS FOR END USER(S)
11.1 License. In order to access and use the Service with any Customer App(s) or the Mirror App, you (the End User) may need to download, use or install software that includes the Mirror Integration Code (defined in Section 1 above), tools provided as part of the Mirror Platform (defined in Section 1 above), plugins, certificates, or other materials or technology that comprise the Mirror Materials (defined in Section 1 above). Subject to your compliance with these Terms, Testfire grants you a limited, non-exclusive, non-assignable, non-sublicensable license to access, download and use any Mirror Material made available to you by Us or by Customer, solely to access and use the Service.
11.2 License Restrictions. We reserve all right, title and interest in the Mirror Materials not expressly granted to you, including but not limited to intellectual property rights and proprietary rights embodied therein. To the maximum extent permitted by law, you may not do any of the following with respect to any Mirror Materials you receive or otherwise have access to: (a) modify, reverse engineer, decompile, or disassemble any Mirror Materials; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer any Mirror Materials; (c) make any copy of or otherwise reproduce any Mirror Materials, (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in any Mirror Materials; (e) work around any technical limitations in any Mirror Material; (f) use any Mirror Materials for purposes for which it is not designed; or (g) use the Service or Mirror Materials to create any service, software or documentation that is substantially the same or has similar functionality as the Service.
11.3 Text Messaging and Data Fees. Note that, by using the Service, you may receive e-mail or text messages on your phone or mobile device with instructions to download and install one or more Customer App(s) or the Mirror App, which may cause you to incur usage charges or other fees or costs in accordance with your wireless or data service plan. Additionally, If you choose to download, install or use one or more Customer App(s) or the Mirror App in connection with the Service, additional data usage charges may apply. Any and all such charges, fees, or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees, or costs may apply to your use of the Service.
12.1 Export Laws. Customer acknowledges and agrees that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data. Customer shall not export or re-export the Mirror Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.
12.2 Relationship of the Parties. The parties are independent contractors with respect to each other. The Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
12.3 Assignment. Neither party may assign the Agreement without the other party’s prior written consent which shall not be unreasonably withheld, provided that either party may, upon written notice to the other party, without the consent of other party, assign or transfer the Agreement to an affiliate or successor organization in connection with a merger, consolidation, change of control, conversion, sale of all or substantially all of its business or assets or similar transaction. Subject to the foregoing, the Agreement will inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors. Any assignment or transfer or attempt to do so in violation of the Agreement shall be void.
12.4 Force Majeure. Neither party will be responsible for any failure or delay in its performance under the Agreement, except for Customer’s obligation to pay the Fees, due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
12.5 Notices. All notices under the Agreement shall be given in writing and sent by registered mail, internationally recognized carrier, or email, or shall be delivered by hand to following addresses:
315 W 36th Street
New York, NY 10018
Via contact information provided in the Subscription Order.
All notices shall be presumed to have been received when (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
12.6 Waiver. A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
12.7 Severability; Counterparts. If any provision, or portion thereof, of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of the Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.
12.8 Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to conflicts of laws principles. The parties agree that the federal and state courts in New York, New York will have exclusive jurisdiction and venue under the Agreement, and the parties hereby agree to submit to such jurisdiction exclusively. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
12.9 Headings. The Section headings used in the Agreement and the attachments are intended for convenience only and shall not be deemed to supersede or modify any provisions.
12.10 Entire Agreement. The Agreement, including any Subscription Order, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Any amendments to the Agreement shall only be valid if in writing and signed by each party. Nothing contained in any Customer purchase order, order acceptance form or other similar document shall in any way modify the Agreement or add any additional provisions to the Agreement.
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