QMetry Test Management

Privacy; Security; Disclosure

QMetry’s privacy and security policies may be viewed at http://www.qmetry.com/privacy-policy/. QMetry reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual Users, when they initially log in, will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from QMetry from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference under personal setup. Note that because the Service is a hosted, online application, QMetry occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If You become a paying customer of the Service, You agree that QMetry can disclose the fact that You are a paying customer and the edition of the Service that You are using.

License Allowance & Limitations

QMetry hereby grants You a non-exclusive, non-transferable, worldwide right to use the Service, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You herein are reserved by QMetry.

You may not access the Service if You are a direct competitor of QMetry, except with QMetry’s prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.

You may not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

QMetry reserves the right to impose a reconnection fee in the event Your access has been suspended and You thereafter request access to the Service.

Open Source Software

Certain items of software that may be included with the Service are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this Agreement limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. Refer to the Open Source Software list for more details.

Your Responsibilities

You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify QMetry immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to QMetry immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate another QMetry user or provide false identity information to gain access to or use the Service.

Account Information and Customer Data

QMetry does not own any data, information or material that You submit to the Service in the course of using the Service. You are responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. QMetry is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Your breach), QMetry will make available to You a file of the Customer Data within 30 days of termination if You so request at the time of termination. QMetry reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment of fees due hereunder. You agree and acknowledge that QMetry has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Your account is 30 days or more delinquent. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and QMetry will have no obligation to maintain or forward any Customer Data.

Aggregate/Anonymous Data

QMetry may generate and collect learnings, logs and usage data (“Aggregate/Anonymous Data”) for ongoing product improvement. You agree that QMetry may use Aggregate/Anonymous Data for any business purpose during or after the term of this Agreement, including without limitation to develop and improve other products and services, as long as the Aggregate/Anonymous Data does not identify You personally.

Intellectual Property Ownership

QMetry alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the QMetry Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the QMetry Technology or the Intellectual Property Rights owned by QMetry. The QMetry name, the QMetry logo, and the product names associated with the Service are trademarks of QMetry or third parties, and no right or license is granted to use them.

Any Third-Party Communications

During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between You and the applicable third-party. QMetry and its licensors will have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. QMetry does not endorse any sites on the Internet that are linked through the Service. QMetry provides these links to You only as a matter of convenience, and in no event will QMetry or its licensors be responsible for any content, products, or other materials on or available from such sites. QMetry provides the Service to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware or services.

Charges and Payment of Fees

You shall pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide QMetry with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. QMetry reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days’ prior notice to You, which notice may be provided by e-mail. All pricing terms are confidential, and You agree not to disclose them to any third party.

Billing and Renewal

QMetry charges and collects fees in advance for use of the Service. QMetry will automatically renew and bill Your credit card or issue an invoice to You each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless QMetry has given You at least 30 days’ prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. QMetry’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on QMetry’s income.

You agree to provide QMetry with complete and accurate billing and contact information. This information includes Your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, QMetry reserves the right to terminate Your access to the Service in addition to any other legal remedies.

Unless QMetry in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); (ii) entities with headquarters and a majority of users resident in Japan will be billed in Japanese yen and subject to Japanese payment terms and pricing schemes (“Japanese Customers”); and (iii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of QMetry (“Non-U.S./Japan Customers”).

If You believe Your bill is incorrect, You must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

Non-Payment and Suspension

In addition to any other rights granted to QMetry herein, QMetry reserves the right to suspend or terminate this Agreement and Your access to the Service if Your account becomes delinquent (falls into arrears). Delinquent invoices for accounts in arrears are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If You or QMetry initiate termination of this Agreement, You will be obligated to pay the balance due on Your account computed in accordance with the Charges and Payment of Fees section above. You agree that QMetry may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees.

Termination upon Expiration; Reducing Number of Licenses

This Agreement commences on the Effective Date when You accept the terms as part of online usage. For QMetry-Lite licenses, the term is indefinite and may be terminated at any time in QMetry’s sole discretion. For all other editions, the Initial Term will be as You elect during the online subscription process or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at QMetry’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of Your breach), QMetry will make available to You access to Your Data for 7 days after termination if You so request at the time of termination. You agree and acknowledge that QMetry has no obligation to retain the Customer Data, and may delete such Customer Data, more than 7 days after termination.

Termination

Any breach of Your payment obligations or unauthorized use of the QMetry Technology or Service will be deemed a material breach of this Agreement. QMetry, in its sole discretion, may terminate Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement. In addition, QMetry may terminate a free account at any time in its sole discretion. You agree and acknowledge that QMetry has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. QMetry represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the documentation provided online under normal use and circumstances. You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to the Service and that Your billing information is correct.

Mutual Indemnification

You shall indemnify and hold QMetry, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that QMetry (a) gives written notice of the claim promptly to You; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release QMetry of all liability and such settlement does not affect QMetry’s business or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim.

QMetry shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that You (a) promptly give written notice of the claim to QMetry; (b) give QMetry sole control of the defense and settlement of the claim (provided that QMetry may not settle or defend any claim unless it unconditionally releases You of all liability); (c) provide to QMetry all available information and assistance; and (d) have not compromised or settled such claim. QMetry will have no indemnification obligation, and You shall indemnify QMetry pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Your or third-party products, services, hardware or business process(s).

Disclaimer of Warranties

THE SERVICE AND ALL CONTENT ARE PROVIDED TO YOU ON AN “AS-IS” BASIS. QMETRY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, AS TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THESE WARRAMTOES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY QMETRY AND ITS LICENSORS. QMetry and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the Service will meet Your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by You through the Service will meet Your requirements or expectations, (e) errors or defects will be corrected, or (f) the Service or the server(s) that make the Service available are free of viruses or other harmful components.

Internet Delays

QMetry’s services may be subject to limitations, delays, and other events inherent in the use of the Internet and electronic communications. QMetry is not responsible for any delays, delivery failures, or other damage resulting from such events.

Limitation of Liability

IN NO EVENT WILL QMETRY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL QMETRY’S AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF QMETRY OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages; accordingly, the exclusions set forth above may not apply to You.

Local Laws and Export Control

This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. You acknowledge and agree that the Service may not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000

QMetry and its licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States of America, Switzerland and/or the European Union, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

Notice

QMetry may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in QMetry’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in QMetry’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to QMetry (such notice shall be deemed given when received by QMetry) at any time by any of the following: letter sent by confirmed facsimile to QMetry at the following fax number: (408) 716-2461; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to QMetry at the following address: Qmetry, Inc., 3200 Patrick Henry Drive, Suite 250 Santa Clara, CA 95054, in either case, addressed to the attention of: Legal Department.

Modification to Terms

QMetry reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.

Assignment; Change in Control

This Agreement may not be assigned by You without the prior written approval of QMetry but may be assigned without Your consent by QMetry to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of QMetry directly or indirectly owning or controlling 50% or more of Your entity shall entitle QMetry to terminate this Agreement for cause immediately upon written notice.

General

This Agreement is governed by California law and controlling by United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.

Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith:

“Agreement” means these online Terms of Use, any Order Forms, whether written or submitted online, and any materials available on the QMetry website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by QMetry from time to time in its sole discretion;

“Content” means the audio and visual information, documents, software, products and services contained or made available to You in the course of using the Service;

“Customer Data” means any data, information or material provided or submitted by You to the Service in the course of using the Service;

“Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date You begin using the Service;

“Initial Term” means the contract term, beginning on the start date and ending on the end date, specified on the applicable Order Form;

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

“License Administrator(s)” means those Users designated by You who are authorized to purchase licenses by executing written Order Forms and to create User accounts and otherwise administer Your use of the Service;

“License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);

“Order Form(s)” means the form evidencing the initial subscription to the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);

“QMetry” means Qmetry Inc., a Delaware corporation having its principal place of business at 3200 Patrick Henry Drive, Suite 250 Santa Clara, CA 95054;

“QMetry Technology” means all of QMetry’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by QMetry in providing the Service; “Service(s)” means the specific edition of QMetry’s online customer relationship management, billing, data analysis, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by QMetry, accessible via http://www.qmetry.com or another designated web site or IP address, or ancillary online or offline products and services provided to You by QMetry, to which You are being granted access under this Agreement, including the QMetry Technology and the Content; “User(s)” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by QMetry at Your request).