Esosystem

ACCEPTANCE OF TERMS AND SERVICE

Esosystem Terms of Service When using the online web tool (here in after, the “ESOSYSTEM SERVICE WEB FORM”) you agree to the following Terms of Service. Please note that when we say "we," "us," or "our," below we mean Esosystem. When we say “Terms” we mean these Terms of Service. If you are entering into these Terms on behalf of a company or another legal entity, you affirm and warrant that you have the authority to bind such entity, its affiliates and all users who access Esosystem Service through your account to these Terms. In this case “you” or “your” refers to such entity, its affiliates and all users associated with it. This is a legally binding contract between you and Esosystem. Please make sure you read it, because it is important. We have tried to make it as clear as possible, but we welcome you to write to us at web@esosystem.com if you have any questions. ESOSYSTEM reserves the right to change the Terms at any time. Modifications to the Terms will not apply retroactively. 1. ESOSYSTEM SERVICE. 1.1 By signing up to receive the Esosystem Service online or by executing these Terms, you consent to receive the Esosystem Service including the below: • Access to your test history for the period stipulated by Esosystem (currently 13 months) from any browser • Easy view to past test results and ability to analyse performance trends • Ability to contribute to the Esosystem Forum discussions • Esosystem Newsletter which brings news about both the latest Esosystem developments and what's going on in the world of performance, directly to your inbox each week. 1.2 These conditions apply to your use of the Esosystem Service. Failure to comply with these Terms will result in immediate termination of your account unless otherwise expressly stated below. 2. ACCOUNT CONDITIONS. 2.1 All persons registered to use the Esosystem Service must be human; users registered by “robots” or other automated methods are not permitted. 2.2 You must provide your legal full name, a valid email address, and any other information requested in order to complete the registration process. 2.3 Your login details are strictly personal and may not be shared with other people. 2.4 You are always solely responsible for maintaining the confidentiality of your login information, Esosystem cannot be held liable. You will notify Esosystem as soon as you become aware of any unauthorized access of your account. 2.5 You are responsible for all activities and User Data (see defined under section 5 below) that is placed under your account (also for users that are created under your account). 2.6 You may not use the Esosystem Service for any illegal or unauthorized purpose. You must not, in the use of the Esosystem Service, violate any applicable laws. 2.7 You are prohibited from: (a) making the Esosystem Service or any portion thereof available for access or use by any third party; (b) modifying, reverse engineering, disassembling, decompiling, reproducing or creating derivative works from or in respect of the Esosystem Service or any Esosystem product, or any of its components; and (c) be prohibited from accessing or using the Esosystem Service in order to: (i) develop a competitive or similar product or service; (ii) copy the features, functionality or design of the Esosystem Service or of its underlying software; (iii) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Esosystem Service or any of its information or materials; (iv) gain or provide unauthorized access to the Esosystem Service or its related systems or networks; or (v) present as the Esosystem Service’s reporting any results that are modified from the results actually reported by Esosystem Service. 3. LICENSE. 3.1 Esosystem is providing you a hosted and managed service which you will access using the internet. By accepting the Terms, Esosystem is granting you a limited, non-transferable, non-exclusive and revocable right and license per these Terms to access and use the Esosystem Service for your internal purposes or internal business purposes, as applicable. All rights not expressly granted to you under these Terms are reserved for Esosystem. 3.2 We may revoke or suspend your account in our sole discretion for any reason that we deem fit in good faith, including for breach of these Terms. 3.3 Esosystem reserves the right to upgrade, maintain, amend, add or remove features, redesign, improve or otherwise alter the Esosystem Service. 3.4 Esosystem may use subcontractors in connection with its performance of the Esosystem Services. 4. FEES AND PAYMENT. 4.1 The fees charged by Esosystem for your use of the Esosystem Service, if applicable, will be a fee in the currency set forth in the plan you choose (“Fee”), which is payable in advance. 4.2 If you are using the Esosystem Service for a Fee, you agree to make payment in advance for all Fees and any applicable taxes due at such frequency, or on such dates, as you have subscribed for. Fees are non-refundable. Also, you acknowledge that the Fee charged does not include any taxes, if applicable, which will be an additional charge payable by you as noted on your invoice unless the law requires us to pay such taxes. 4.3 All payments shall be made via online payment methods such as using a credit card or in such other manner as Esosystem may direct from time-to-time. You agree that you have no right to access Esosystem Service if you fail to make payments when due. Esosystem reserves the right to temporarily suspend your use of the Esosystem Service until you have paid in full any amounts that are outstanding. 4.4 If you fail to pay in full any amounts that are outstanding within thirty (30) days of it becoming overdue, Esosystem may terminate your account with or without any further notice and these Terms will also end as of such account termination date. 4.5 You agree that Esosystem shall not be responsible or liable for any unavailability or interruptions in the use of the Esosystem Service as a result of your failure to pay for the Esosystem Service (as we described in 4.3 and 4.4 above) or for any unavailability of User Data after we have terminated your account as stated under 4.4 above. 4.6 Esosystem reserves the right to introduce or change any Fees from time-to-time by giving you no less than 30 days’ written notice. Any new or changed Fees will apply at the next billing period after you have been given such notice. If you do not accept a change to any Fees, then you can terminate your account as permitted under Section 7 below. 5. DATA. 5.1 Esosystem will never claim ownership over your content and/or materials posted to your account (“User Data”). In other words, your data is and remains your property. However, you hereby grant Esosystem a non-exclusive, royalty-free right and license to use the User Data: (a) to provide you the Esosystem Service that you are registered for; (b) to operate, manage, maintain and improve the Esosystem Service and technology; and (c) to include the User Data in aggregated statistics about the scope of the Esosystem Service for use by Esosystem in its marketing efforts (only so long as User Data will not be identified or identifiable in any statistics compiled). Please note that this license to Esosystem does not permit us to sell User Data to advertisers or any other third party, nor does it transfer any intellectual property rights to us. This license ends when our service to you ends and delete the material or your account with us. 5.2 Esosystem will maintain commercially reasonable administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of User Data. You can read more about our privacy notice at www.esosystem.com/privacy. 6. PROPRIETARY RIGHTS. 6.1 Apart from the limited licenses granted by Esosystem under Section 3 above to you and by you to Esosystem under Section 5 above, we own our stuff; you own yours. 6.2 You acknowledge that the Esosystem Service and its associated technology, and all patent, copyright, trademark, and all other intellectual property and proprietary rights in, to and associated with the foregoing, are the sole and exclusive property of Esosystem and its licensors. 6.3 You hereby agree that if you provide us any ideas, suggestions, or recommendations regarding Esosystem Services (“Feedback”), you are deemed to have granted Esosystem a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, worldwide license in the Feedback and we are free to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit without restriction of any kind such Feedback in our products, without payment of royalties or other consideration to you. 7. TERM AND TERMINATION. 7.1 Please note all subscriptions are automatically renewed unless explicitly cancelled as set forth below. 7.2 Esosystem may terminate your account by providing you 15 days prior written notice. You may terminate your account or subscription plan by logging into your Esosystem Service account at any time, effective at the end of the current billing cycle. For example, if you have a monthly subscription and if you choose to terminate that monthly subscription, the termination will become effective at the end of the current monthly billing cycle. Similarly, for an annual subscription, if you choose to terminate your annual subscription, the termination will become effective at the end of the current annual billing cycle. 7.3 Upon any termination you will not be entitled to a refund of the unused portion of any Fees prepaid by you, and you will remain responsible for any amounts incurred but not yet paid. Please note that if you terminate your account, any subscription associated with that account will automatically terminate. However, termination of a subscription plan will not terminate or cancel your Esosystem Service account: when you cancel, you cancel only the subscription. You’ll continue to have access to run tests for that plan, until the end of your current billing period. You’ll continue to have access to the Web Page Test account and history of the manual tests we ran with that account. 7.4 Esosystem may terminate your account or subscription if you breach any of the Terms unless Esosystem at its sole discretion permits you to cure such breach within thirty (30) days of providing you notice of the breach. You may terminate your account or subscription, as applicable, if we breach any of the Terms and fail to cure such breach within thirty (30) days of you providing us written notice of the breach. 7.5 Upon termination, all rights and licenses granted to you under these Terms will terminate immediately and you will immediately stop accessing and using the Esosystem Service. 7.6 All User Data will be immediately deleted from the Esosystem Service upon termination of your account. This information cannot be recovered once your account is terminated. 8. CONFIDENTIAL INFORMATION. 8.1 “Confidential Information” means any information or material, whether in verbal, written, graphic, or electronic form, that is disclosed, provided or made accessible by, or on behalf of a party to the other party (i.e., by “Esosystem or on Esosystem’s behalf to you or vice-versa), and which is identified as “confidential” or “proprietary” or which, given the nature of the information or material, or the circumstances surrounding its disclosure, should reasonably be understood by the receiving party to be confidential or proprietary to the disclosing party. Esosystem’s Confidential Information specifically includes, but is not limited to the Esosystem Service, and the associated technology, software, features, user interface details, capabilities, passwords, documentation, know-how, trade secrets, and source code. 8.2 Neither party will disclose the other party’s Confidential Information to any person or use such Confidential Information for any purpose other than to perform its obligations under these Terms. 8.3 Neither party’s obligations of confidentiality under these Terms shall extend to any of the following: (a) information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party; (b) information that is or otherwise becomes available in the general public through no breach of these Terms by the receiving party; (c) information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; or (d) information that the receiving party developed independently without any use of or reference to the information provided by the disclosing party. If a party is required by law, government regulation or other process to disclose any Confidential Information, the party seeking to make such disclosure will notify the other party promptly in writing upon receipt of such document requiring disclosure, so that such other party may seek to obtain a protective order. 9. COMPLIANCE WITH LAWS. 9.1 Your use of the Esosystem Service shall comply with all applicable laws, rules and regulations, and industry best practices related to privacy and security. If you violate the obligation set forth in the preceding sentence, Esosystem may, upon written notice to you, immediately suspend your access to the Esosystem Service. 10. WARRANTIES. 10.1 Each party warrants that it has all necessary rights and authority: (a) to enter into these Terms; and (b) to perform its obligations under it. 10.2 Except as expressly stated under these Terms, we do not warrant, whether express or implied, statutory or otherwise, including but not limited to any implied warranty of merchantability or fitness of any of the Esosystem Service for a particular purpose and non-infringement, or from a course of dealing or usage in trade. Without limiting the generality of the foregoing disclaimer, Esosystem specifically disclaims any representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Esosystem Service or the content or information made accessible by or through the Esosystem Service, and Esosystem does not represent or warrant that: (a) the use of the Esosystem Service will be uninterrupted or error-free or secure or operate in combination with any other hardware, software, system or data; (b) the Esosystem Service will meet your requirements or expectations; (c) the reported data will be accurate or reliable; (d) the products, services, information, or other material you receive through the Esosystem Service will meet your requirements or expectations; (e) errors or defects will be corrected; or (f) the Esosystem Service and its associated technology or equipment are free of viruses or other harmful components. The Esosystem Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Esosystem is not responsible and shall have no liability for: (i) any delays, delivery failures; other damage resulting from such problems, (ii) by reason of a Force Majeure Event (defined in section 13 below); or (iii) any acts or omissions due to any other causes or circumstances beyond its reasonable control. 11. INDEMNIFICATION. 11.1 You hereby agree to indemnify Esosystem for any loss, damage, cost or expense that we may suffer or incur as a result of or in connection with your use of or conduct in connection with the Esosystem Service, including any breach of these Terms. 12. LIMITATIONS OF LIABILITY. 12.1 Under no circumstances will Esosystem be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting to any party from your access to, or use of, or inability to use the Esosystem Service, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Esosystem knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise. The foregoing shall not apply to the extent prohibited by applicable law. 13. FORCE MAJEURE. 13.1 If, and to the extent that, either you or Esosystem cannot perform its respective obligations (other than your obligation to make payments for the Esosystem Service) under these Terms because of an act or regulation of public authority, fire, riot or civil commotion, lockout or strike or other labour dispute, terrorist act, act or declaration of war, substantial interruption in, or substantial delay or failure of, technical facilities, war conditions, act of God, a public health emergency, disease outbreak, epidemic, pandemic (as designated by the Centre for Disease Control and Prevention, the World Health Organization and/or other similar domestic or international agencies) or other occurrence outside your or Esosystem’s reasonable control (“Force Majeure Event”), neither Esosystem nor you will have any obligation or liability as a result of such Force Majeure Event. 14. NOTICE. 14.1 Esosystem will provide you any notice under these Terms by sending you an email to your e-mail address on record under the Esosystem Service account information. It is your responsibility to update your contact details as they change. You can provide us any written notice as required under these Terms by sending us an email to webpagetest@esosystem.com with a copy addressed to our legal team at Legal-dept@esosystem.com. 15. ASSIGNMENT. 15.1 You may not assign your rights or obligations under these Terms, whether voluntarily or by operation of law or otherwise, without Esosystem’s prior written consent. 16. GENERAL. 16.1 You agree that we may communicate electronically with you using the email address you provide to us on information relevant to your use of the Esosystem Service, including sending Esosystem Newsletters (see Section 1.1 above), Esosystem Service account related information and updates to the Esosystem Service. You may unsubscribe from some communications, such as emails informing you of optimizations and newsletters via the unsubscribe link in the email. If you would like to cease all communications from us, please send an email to support@esosystem.com. 16.2 These Terms shall be governed by the laws of the Edo State of Nigeria. For any disputes arising in connection with these Terms, you hereby consent to exclusive jurisdiction of and venue in the state or federal courts within the state and county of Edo State. The relationship between the parties under these Terms does not form a joint venture or partnership. If any provision of these Terms is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, without affecting the remaining sections of the Terms. Any failure by Esosystem to enforce any right or provision under these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Esosystem in writing.