Terms of Service

(Effective as of April 29, 2013)

Thank you for using TestElf! TestElf's product and services are provided by TestElf LLC. The following Terms of Service govern all use of the Service via the website located at http://www.testelf.com/ and all content, services, and products available at or through the website.

We understand that reading Terms of Service agreements are a chore, but please read this Agreement carefully before accessing or using the website. It discusses the nature of TestElf’s Service; the rules TestElf expects users to follow on its website and its service; the relationship between TestElf and its users; and the legal details that control these rules and relationships.

By accessing or using any part of the TestElf website, you agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access the website or use any of its services. The website is available only to individuals who are at least 13 years old.

  1. Definitions. The following terms are used throughout the Agreement, and have specific meanings.
    1. The “Service” refers to the services provided by TestElf, including without limitation: testing, evaluating, and reporting on user-submitted Apps, and any associated applications, software, or products used or provided by TestElf in connection with those services.
    2. The “Agreement” refers, collectively, to all the terms, conditions, and notices contained or referenced in it (the “Terms of Service”) and all other TestElf operating rules, policies (including, without limitation, the TestElf Privacy Statement, incorporated by reference in this Agreement and available at http://www.testelf.com/privacy/) and procedures that may be published from time to time on the Website by TestElf.
    3. The “Website” refers to TestElf’s website located at http://www.testelf.com/, all subpages and subdomains, and all content, services, and products available at or through the Website.
    4. “The User,” “You” and “Your” refer to the person, company, or organization that has visited or is using the Website and/or Service.
    5. “TestElf,” “We” and “Us” refer to TestElf LLC, as well as its affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.
    6. “Apps” refer to user-generated applications submitted to the Website for the purposes of accessing the Service.
    7. “Content” refers to content featured or displayed through the Website, including without limitation text, documents, information, data, articles, images, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features, and other materials that are available on the Website. "Content" also includes Marks and Services. “Content” also includes user-generated content submitted to TestElf, including Apps.
    8. “Mark” refers to a trademark, trade name, service mark, trade dress, logo, custom graphics, or icon.
  2. About the Service. TestElf provides testing services for iOS, OS X, and Android applications. Our users upload the compiled builds that they'd like to test and we generate a complete report of almost every functionality and screen in the app.
    1. If you sign up for the Service, you will create a personalized account that includes a unique username and a password to access the Service.
  3. License Agreement. TestElf respects your intellectual property rights in the Apps you submit to us for testing and evaluation. You will always retain full ownership and control of the Apps you submit to us. However, there are certain legal permissions we need in order to perform the Service. By uploading content, you give us these permissions, and we promise not to abuse your trust in us.
    1. Ownership. Except for Content that originates from TestElf, we do not claim ownership of any Content that is transmitted, stored, or processed in your account. TestElf assumes that you own all Content, including Apps, software, text, images, or other information, that you submit to us. You retain all ownership of, control of, and responsibility for all Content you submit to us. All Content is licensed, not sold.
    2. License Grant. Solely to allow TestElf to use, evaluate, and report on the Content you upload to the Service without violating any rights you have in it, you grant TestElf the following rights: by submitting any Content to the Service, you expressly grant TestElf, our successors, and approved TestElf business affiliates necessary for providing the TestElf Service a worldwide, fully-paid and royalty-free, and non-exclusive license to use, reproduce, display, modify, adapt, distribute, and perform the Content. TestElf may also use, evaluate, and report on Content for internal training purposes.
    3. License Restrictions. TestElf will not, nor will we allow third parties on our behalf to, (i) attempt to reverse engineer, decompile, or make derivative works based on your Content; or (ii) sell, rent, loan, sub-license, lease, or attempt to grant other rights to the Content to third parties outside TestElf.
  4. User Responsibilities. You are solely responsible for your account and the activity that occurs while signed in to or while using your account. Your permission to use the Website is conditioned upon the following Use Restrictions and Conduct Restrictions.
    1. User Account Security. You are responsible for maintaining the security of your user account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You agree to notify TestElf immediately of any unauthorized use of your account, or any other breaches of security. TestElf will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your computer, mobile device, or other computing device and/or account.
    2. Compliance With Laws. You represent and warrant that: (i) you have the authority to, and are of legal age to, bind yourself to this Agreement; (ii) your use of the Service will be solely for purposes that are permitted by this Agreement; (iii) your use of the Service will not infringe or misappropriate the intellectual property rights of any third party; and (iv) your use of the Service will comply with all local, state and federal laws, rules, and regulations, and with all other TestElf policies.
  5. Use and Conduct Restrictions. Certain Use and Conduct Restrictions control your use of the Service. TestElf has the right to remove Content at its discretion and may terminate accounts of Users who violate the Terms of Service. TestElf has no liability for the content its Users post.
    1. You agree that you will not under any circumstances transmit any content (including software, text, images, or other information) that:
      1. is unlawful or promotes unlawful activities;
      2. defames, harasses, abuses, threatens, or incites violence towards any individual or group;
      3. is pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
      4. is spam, is machine- or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
      5. contains or installs any viruses, worms, malware, Trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
      6. infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights;
      7. impersonates any person or entity, including any of our employees or representatives; or
      8. violates the privacy of any third party.
    2. No Liability For User Interactions; TestElf May Refuse Apps. Any liability, loss or damage that occurs as a result of the use of any User interactions, including uploading compiled App binaries, that you input or receive through your use of the Service, is solely your responsibility. We have the right (though not the obligation) to, in our sole discretion, refuse or remove any Content that, in our reasonable opinion, violates any TestElf policy or is in any way harmful or objectionable, or terminate or deny access to and use of the Service to any individual or entity for any reason.
  6. User-Generated Content. When you create an account on the Service, you may be able to generate content, such as by uploading Apps (“User-Generated Content”). The following rules pertain to User-Generated Content.
    1. Responsibility for User-Generated Content. You are solely responsible for the content of, and any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that content. Any liability, loss or damage that occurs as a result of the use of any User-Generated Content that you make available or access through your use of the Service is solely your responsibility.
    2. Right to Post. You represent and warrant that you have the right to post all User-Generated Content you submit. Specifically, you warrant that you have fully complied with any third party licenses relating to User-Generated Content, and have taken all steps necessary to pass through to end users any required terms.
    3. TestElf May Remove Content. TestElf reserves the right to, but does not have the obligation to, remove any Content from the Service at its discretion and terminate your account with or without prior notice.
  7. Third Party Content. There may be content from third parties on TestElf’s Website. We are not responsible for third party content or for the websites that content may link to.
    1. By using the Service, you will be able to access Content belonging to or originating from third parties (“Third Party Content”). Your use of the Service is consent for TestElf to present this Content to you. You acknowledge all responsibility for, and assume all risk for, your use of Third Party Content.
    2. As part of the Service, TestElf may provide you with convenient links to third party website(s) as well as other forms of Third Party Content. These links are provided as a courtesy to Service subscribers. We have no control over third party websites or content or the promotions, materials, information, goods or services available on them. By linking to such content, we do not represent or imply that we endorse such site or content. We are not responsible for any Third Party Content accessed through our Website. If you decide to leave the Website and access Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any such content.
    3. This Agreement does not authorize you to distribute, publicly display, publicly perform, make available, alter, or otherwise use any Third Party Content except as permitted by TestElf’s terms and conditions.
  8. Copyright Infringement and DMCA Policy. As TestElf asks others to respect its intellectual property rights, it respects the intellectual property rights of others.
    1. DMCA Policy. If you believe that material located on or linked to by TestElf violates your copyright, you are encouraged to notify TestElf’s DMCA Agent at [email protected] or mail TestElf DMCA Agent, 1270 Guerrero Street Apt 4, San Francisco, CA 94110, in accordance with TestElf’s Digital Millennium Copyright Act Policy.
    2. Repeat Infringers. TestElf reserves the right to terminate the accounts of repeat infringers of intellectual property.
  9. Intellectual Property Notice. TestElf retains all ownership of its intellectual property, including its copyrights, patents, and trademarks.
    1. TestElf and its licensors, vendors, agents, and/or its content providers retain ownership of all intellectual property rights of any kind related to the Website and Service, including applicable copyrights, patents, trademarks and other proprietary rights. Other trademarks, service marks, graphics and logos used in connection with the Website and the Service may be the trademarks of other third parties. This Agreement does not transfer from us to you any TestElf or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with us. We reserve all rights that are not expressly granted to you under this Agreement.
    2. Specifically, TestElf, TestElf.com, and all other Marks that appear, are displayed, or are used on the Website or as part of the Service are registered or common law trademarks or service marks of TestElf LLC. These Marks may not be copied, downloaded, reproduced, used, modified, or distributed in any way without prior written permission from TestElf LLC, except as an integral part of any authorized copy of the Content.
  10. Email Communications. TestElf communicates with its Users through email and electronic means.
    1. For contractual purposes, you (a) consent to receive communications from TestElf in an electronic form via the email address you have submitted or via the Service; and (b) agree that all Terms of Service, agreements, notices, disclosures, and other communications that TestElf provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
    2. Communications made through email or the Service’s e-mail and messaging system will not constitute legal notice to TestElf or any of its officers, employees, agents or representatives in any situation where notice to TestElf is required by contract or any law or regulation.
  11. Termination. Either party may terminate this Agreement at any time.
    1. TestElf may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately.
    2. If you wish to terminate this Agreement or your account with the Service, you may simply discontinue using the Service. If you wish to delete your User Personal Information (as defined in the TestElf Privacy Statement), you may do so in the user control panel or you may contact TestElf at [email protected] We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, but barring legal requirements, we will delete your full profile within 30 business days.
    3. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
  12. Payment. TestElf offers both a pay-per-use model and a monthly subscription. We use a third party payment processor to securely handle your payment transactions.
    1. Pricing. TestElf’s price list can be found at http://www.testelf.com/prices/. It is your responsibility to be aware of TestElf’s prices. If our rates change, we will notify our users.
    2. Authorization for Payment. By agreeing to these terms, you are giving TestElf permission to charge your on-file credit card, PayPal account, or other approved methods of payment for fees that you authorize. TestElf, through our third-party payment processor, will charge your on-file credit card or PayPal account, either on a one-time or recurring basis. You authorize TestElf to charge you the full amount owed for fees accrued via the Service.
    3. Responsibility for Payment. You are responsible for all fees, including taxes, associated with your use of the Service. TestElf agrees to present you with a full invoice in advance of charging your credit card or PayPal account. We will also provide a full invoice on demand.
    4. Refunds. Although we strive to provide a useful Service, we understand that unforeseen circumstances do happen. If you would like to cancel or refund your unused test credits, please contact [email protected] Refunds will be issued solely at our discretion.
  13. DISCLAIMER OF WARRANTIES. TESTELF PROVIDES THE WEBSITE AND THE SERVICE “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TESTELF EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE WEBSITE AND THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. SPECIFICALLY, TESTELF DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE FOR ITS TESTING AND EVALUATION. USE AT YOUR OWN RISK.
    WITHOUT LIMITING THE FOREGOING, NEITHER TESTELF NOR ITS SUPPLIERS AND LICENSORS MAKE ANY WARRANTY OR REPRESENTATION THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
  14. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TESTELF, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) YOUR USE OF TESTELF’S SERVICE; (B) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER-GENERATED CONTENT; (C) YOUR USE OF OR INABILITY TO USE THE SERVICE; (D) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; (E) ANY LOSS, NEGLIGENCE, OR DAMAGE ON THE PART OF TESTELF’S THIRD-PARTY BUSINESS AFFILIATES OR PARTNERS; OR (F) ANY OTHER INTERACTIONS WITH TESTELF OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TESTELF HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TESTELF SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
  15. Release and Indemnification.
    1. You agree to indemnify and hold harmless TestElf from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website and the Service, including but not limited to your violation of this Agreement.
    2. If you have a dispute with one or more Users, you release TestElf from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
  16. Modification of Terms of Service. TestElf may modify this Agreement, but we will notify Users of material changes.
    1. TestElf reserves the right, at its sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. TestElf will notify its Users of material changes to this Agreement at least 30 days prior to the change taking effect by posting a notice on its home page, sending an email to the email address you provided to TestElf, and/or updating its Service and requiring renewal of your acceptance of the Agreement. For non-material modifications, your continued use of the Website constitutes agreement to TestElf’s revisions to these Terms of Service.
  17. Miscellaneous. The following provisions define the governing law of this Agreement, set out the severability of this Agreement’s provisions, limit terms of actions, state TestElf’s arbitration policy, assert the non-assignability of this Agreement, and require all parties to be authorized to enter into a contract.
    1. Governing Law. Except to the extent applicable law provides otherwise, this Agreement between you and TestElf and any access to or use of the Website or the Service are governed by the federal laws of the United States of America and the laws of the State of California, without regard to conflict of law provisions. You and TestElf agree to submit to the exclusive jurisdiction and venue of the courts located in the City and County of San Francisco, California, except as provided below in this Agreement.
    2. Severability. If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of TestElf to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
    3. Limitation of Term of Action. You agree that any cause of action related to or arising out of your relationship with TestElf must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
    4. Arbitration. Should a dispute arise between you and TestElf, we would like to provide you with a neutral and cost-effective means of resolving the dispute quickly. Therefore, except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), either party may elect to resolve any dispute arising under this Agreement through binding non-appearance-based arbitration. The party electing arbitration must initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
    5. Non-Assignability. TestElf may assign or delegate these Terms of Service and/or the TestElf Privacy Statement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Statement without TestElf’s prior written consent, and any unauthorized assignment and delegation by you is void.
    6. Section Headings Non-Binding. Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.
    7. Authorization to Contract. You represent and warrant that if you are an individual, you are of legal age to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, these Terms of Service and register for the Service.

You acknowledge that you have read these Terms of Service, understand the Terms of Service, and will be bound by these terms and conditions. You further acknowledge that these terms of service together with the Privacy Statement at http://www.testelf.com/privacy/ represent the complete and exclusive statement of the agreement between you and TestElf and that it supersedes any proposal or prior agreement oral or written, and any other communications between you and TestElf relating to the subject matter of this Agreement. This Agreement may only be modified by a written amendment signed by an authorized executive of TestElf, or by the posting by TestElf of a revised version.