Effective Date: May 16, 2021
At Contester We develop and license proprietary software frameworks and tools, and provide a cloud-based service offering, that aims to enable leveraging customers with interactive and multilayer video experiences.
Your acceptance of these Terms is required in order for you to access and use the Contester platform. By registering with us, or by using the Contester platform in whole or in part, you are entering into a legally binding agreement with us. Please read these Terms carefully.
If you do not agree to these Terms, you cannot use the Contester platform. We reserve the right at our discretion to propose modifications to these Terms periodically. We will notify you of such changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the Contester platform after notice of such modifications indicates your acceptance of and agreement to the modified Terms.
“Access Information”: user name, password, and other log-in information for access to the Contester platform.
“Authorized Users”: your employees or agents using the Contester platform on your behalf and for your benefit.
“Content”: text, images, graphics, photos, video, audio, and any other content, information or data, created, derived from or accessible via use of the Contester platform.
“Evaluation Trial”: provision of the Contester platform free of charge for a limited period.
“Contester Applications”: the off-the-shelf application software that we provide forcreating and managing video experiences, as may be updated or modified by us in our sole discretion on one or more occasions.
“Contester Cloud Service”: the internet-delivered video storage, streaming and capture service provided by us and used in conjunction with the Contester Applications and/or Your Applications, which may include the Contester web-based content management, all as may be updated or modified by us in our sole discretion on one or more occasions.
“Contester Widget”: the embeddable video experience application as provided and updated by us.
“Contester Software”: the Contester Applications and the Contester Tools.
“Contester platform”: Contester Cloud Service, Contester Software, Support Services, and all other services and solutions offered by Contester and the features, functionality, data, applications, services and content, that we may make available to you, including as set forth in an Order.
“Contester Tools”: software tools (including the Contester Software Development Kits and associated client libraries and frameworks), documentation, application programming interfaces and other materials, information and data we may make available to you to facilitate your development of Your Applications and to enable the use of the Contester Cloud Service, including the Contester Widget, all as may be updated or modified by us in our sole discretion on one or more occasions.
“Order”: the online signup page or separate ordering form (as may be amended), digitally or physically accepted by you, setting forth the Evaluation Trial and/or subscriptions you have purchased for access to the Contester platform, terms regarding Support Services, if any, and other associated terms.
“Other Applications”: Your Applications, Content and online or offline software, products, services, functionality, text, video, audio, data, hardware, network and content not developed or provided by us, including any of the foregoing that is owned or licensed by you or other party, or that is processed, made available, or enabled for use and display, via the Contester platform.
“Service Level Agreement” or “SLA”: the service level agreement set forth in section 7.1 below.
“Support Services”: services we perform to enable the training, setup, integration, maintenance and/or support of the Contester platform, which may include consulting, professional services, provision of the SLA, and updates of the Contester Software, if any, if and as specified in the Order.
“We”, “us”, “our” or “Contester ”: Contester Technologies OÜ, organized under the laws of Estonia.
“You” or “your”: the individual using the Contester platform, or clicking “accept” or “agree” or otherwise demonstrating acceptance of the Terms, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual and/or that accepted an Order, and all affiliates thereto.
“Your Applications”: the software applications and websites owned or controlled by you, and configured or adapted to utilize the Contester Cloud Service, including via use of the Contester Tools.
2.1 Availability. Subject to your compliance with these Terms, including payment obligations, we will make available a subscription to the Contester platform in accordance with the applicable Order(s). You acknowledge that your decision to use the Contester platform is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by us. You may not use the Contester platform if you barred from doing so under the laws of the Estonia, the United States or other countries including the country in which you are resident or from which you use the Contester platform. If you are using the Contester platform on behalf of a company, you warrant that you have full power and authority to bind such company to these terms.
2.2 Evaluation Trial. Any Content, adaptations, customizations or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless you maintain a subscription to the applicable Contester platform. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE EVALUATION TRIAL IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, and the SLA does not apply to any Evaluation Trial. You must cancel the Evaluation Trial by the end of the stated number of days in the Evaluation Trial offer to avoid incurring charges, unless we notify you otherwise. If you do not cancel at the end of the Evaluation Trial period, we may charge you for the subscription.
2.3 Consent to Emails. You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Contester platform, including notifications related to your subscriptions and Support Services, administrative notices and service announcements or changes.
2.4 Reservation of Rights. We retain all right, title and interest in and to the Contester platform and our Content, and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the Contester platform are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy the Contester platform, except for your own personal use or your own business operations, and solely in accordance with these Terms.
2.5 Your Content. You retain all right, title and interest in and to your Content and all associated intellectual property rights.
3.1 Necessary Systems. Access to and ability to effectively use the Contester platform is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of the Contester platform requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.
3.2 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Contester platform for our business purposes, including for product licensing, support and development, without any obligation or payment to you. If you voluntarily provide any such feedback to us, you warrant that you have full right and authority to do so and that our use of such feedback will not infringe or violate third party rights.
3.3 Information. You hereby consent to our collection and use of anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of the Contester platform in order to provide the functionality of the Contester platform, for product development and marketing purposes, and for verifying Terms compliance. We may use automated means to isolate information from your Content in order to help detect and protect against spam and malware, or to improve the Contester platform. The foregoing will not be construed as an admission that consent to such data collection activity is legally required. You represent and warrant that all information that you submit to us in connection with the Contester platform, including account and billing information, is accurate, complete and truthful, and that you will promptly update any information provided by you that subsequently becomes inaccurate, incomplete, misleading or false.
3.4 Unauthorized Use. You will not use the Contester platform or participate in any activities via the Contester platform in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of the Contester platform must be in full compliance with applicable law. You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use, or enable or permit the use of the Contester platform to store or transmit infringing, libelous, pornographic, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access the Contester platform: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.5 Notifications to You. For purposes of service messages and notices about the Contester platform to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services. We may propose changes to these Terms from time to time, and will notify you as provided by this section.
3.6 Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to [email protected] and via physical delivery to our corporate address.
3.7 Administration and moderation.
4.1 License Grant. Subject to your compliance with the obligations of these Terms, we hereby grant to you a non-sublicensable, non-transferable, and non-exclusive license to (a) install and use the Contester Tools on any applicable computing device owned by you or in your exclusive possession, for your internal or personal use in support of your business operations, and for the purpose of the development and testing of Your Applications and setting up the Contester platform in your environment; (b) reproduce and distribute copies of the applicable components of the Contester Tools, designated by us as re-distributable client libraries suitable for such use, solely as permanently embedded in object code form in Your Applications, and solely for the purpose of utilizing the Contester Cloud Service; (c) install, use and operate, from Your Applications controlled by you, the Contester Widget for purposes of displaying Content provisioned from the Contester Cloud Service; and (d) permit your Authorized Users (up to the number permitted in the Order or, if none specified there), working exclusively in support of your business operations, to use the Contester Applications on any applicable computing device owned by such users or in their exclusive possession.
4.2 Updates. The Contester Software may update automatically. Updates may be required for your continued use of the Contester platform. You agree to accept such updates subject to these Terms unless other terms accompany the updates. If so, those other terms will apply. We are not obligated to make any updates available and do not guarantee that we will support the version of the Contester Tools or Contester Applications that you are currently using.
4.3 Unauthorized Use. Except as set forth above, you will not (a) copy the Contester Software except as required to load on to the device described in section 4.1 above; (b) distribute to or share use of the Contester Software with any third party; (c) modify, or create derivative works or improvements of, the Contester Software; or (d) or sublicense, rent, lease, or commercially host the Contester Software. All rights not expressly granted in this section are reserved to us. You will have no right or license to the Contester Software other than the rights set forth in section 4.1.
4.4 Ownership. We and our licensors retain all right, title and interest in the Contester Software and associated intellectual property rights, and all copies of the Contester Software. The structure, sequence, organization and code of the Contester Software constitute our and our licensors’ valuable trade secrets and copyrighted confidential information. You will preserve, not suppress and ensure the conspicuous display within Your Applications of our proprietary notices, markings, and branding associated with or displayed via the use of the Contester Tools.
4.5 Reverse Engineering. You will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the Contester Software, or work around technical protections or limitations associated with the Contester Software, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Contester Software; and (c) we have not made such information available to you under reasonable terms and conditions. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the Contester Software. You will not circumvent or bypass any technological protection measures in or relating to the Contester platform, or enable access by unauthorized third party applications.
4.6 Open Source. Certain components or libraries included in or bundled with the Contester Software may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this section, solely with respect to those libraries or components that are licensed under such open source licenses.
4.7 Services Deliverables. We retain all right, title and interest in and to any “Services Deliverables”, defined as deliverables, software, materials, data, information or content provided to you in furtherance or in connection with your use of the Contester platform (including any of the foregoing developed, or delivered to you, as part of Support Services), and all associated intellectual property rights. You will not directly or indirectly copy the Services Deliverables or disclose them to any third party, in whole or in part, and upon termination of these Terms or access to the Contester platform, you will destroy and not retain use of all copies of all Services Deliverables.
4.8 Our Marks. You agree that any use of our marks, branding and logos (“Marks”), whether permitted or otherwise, will inure to the sole beneﬁt of Contester. You will not directly or indirectly: (a) ﬁle or prepare any application for registration of any Marks; (b) assert any right, title, license to, or interest in the Marks; or (c) adopt, use, ﬁle for registration, or register, in whole or in part, any trademark, service mark, trade name, logo, or domain name which may be, in our sole discretion, confusingly similar to or an infringement of the Marks or any of our domain names.
5.1 Access Information. You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to [email protected]. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
5.2 Responsibility for Content. All Content is your sole responsibility and the responsibility of the user from which such Content originated. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as “inactive” and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up all Content and end user data. We may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. In the event that you elect not to comply with a request from us to remove certain Content, we may disable the Contester platform until compliance is secured. If you become aware of any violation of these Terms by an Authorized User, you will immediately terminate such Authorized User’s use of the Contester platform. We reserve the right to terminate Contester platform access, and to disable Contester Software, in response to a violation or suspected violation of these Terms.
5.3 Use of Content. You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the Contester platform, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners’ intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any Contester platform user.
5.4 Propriety of Content. You will not, and will ensure that no Authorized User, transmit Content or otherwise conduct or participate in any activities on or via the Contester platform which is likely to be prohibited by law, or is violative or in breach of third party rights in any applicable jurisdiction, including without limitation laws governing privacy, publicity, libel and defamation, encryption of software, the export of technology, the transmission of obscenity or the permissible uses of intellectual property. You will not and will ensure that no Authorized User uploads, downloads, displays, performs, transmits, or otherwise distributes any Content, or otherwise engages in any activity in connection with the Contester platform, that (a) is hateful, offensive, racist, bigoted, libelous, defamatory, obscene, abusive, pornographic, lewd, erroneous, stalking, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (c) constitutes infringement of the intellectual property rights of any party, including rights to the use of name and likeness, or violation of a right of privacy; (d) creates an impression that is incorrect, misleading, or deceptive, including without limitation by impersonating others or by otherwise misrepresenting identity or affiliation with a person or entity; or (e) divulges other people’s private or personally identifiable information without their express authorization and permission. You represent and warrant that you have all necessary rights and licenses to transmit Content. We may, in our sole discretion, terminate the Contester platform as to any Content that we believe in our sole judgment is not in compliance with these Terms.
5.5 Account Data. While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that your Content will not be retrievable or accessible except via your authorized use of the Contester platform, and that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing. However, if you have any sensitive content deleted you can contact [email protected] to take to account the retrieval process.
5.6 Supervisory Use; Third Party Compliance. If a third party such as an employer or other party retaining your services provided your account or directed or authorized the creation of your account, that third party has rights to that account and may manage, suspend or cancel the account, reset Access Information, and view the account’s usage, information and profile data. You will communicate these Terms to anyone who comes into contact with or uses the Contester platform through your account. You will ensure such parties’ compliance with these Terms.
5.7 License to Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, modify, create derivative works of, perform, display and distribute Content solely for purposes of providing the Contester platform for the benefit of you, your Authorized Users and viewers of your Content and to improve the Contester platform for you and other customers.
6.1 Responsibility. You are solely responsible for the Other Applications. Under no circumstances will we be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind incurred as a result of the use of the Other Applications or for errors in the Contester platform occur as a result of the use of the Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of the Contester platform and on reasonable terms or otherwise, we may cease providing such features of the Contester platform, without entitling you to any refund, credit or other compensation.
6.2 Use of Your Content. If you install or enable Other Applications for use with the Contester platform, you acknowledge that providers of the Other Applications may access your Content as required for the interoperation of such Other Applications with the Contester platform. We will not be responsible for any disclosure, modification or deletion of your Content resulting from any such access by Other Applications or from enabling Other Applications to interoperate with the Contester platform.
6.3 Other Applications Terms. You may be subject to additional terms and conditions that may apply when you use Other Applications, or affiliate or third party content or services.
6.4 Your Applications; Content. You will fully comply with, and ensure that Your Applications satisfy, all applicable requirements imposed by Apple or Google for distribution of applications through their respective application stores, and requirements imposed by applicable law. You will not develop or distribute Your Applications in a manner that could cause any part of the Contester Tools to become subject to an open source license that requires any software derived from, based on, linked to, or bundled or integrated with code made available under such license, to be made available in source code form, or without charge, or free of enforceable licensable rights or restrictions. You will be solely responsible for the accuracy, quality, and legality of Your Applications, and will promptly handle and resolve any notices and claims relating to Content, including without limitation, any notice sent to you by any person or entity claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act. You will maintain appropriate security, protection, and backup copies of the Content, which may include your use of additional encryption technology to protect the Content from unauthorized access.
7.1 Service Level Agreement. This section 7.1: (a) states your sole and exclusive remedy and our sole obligation in the event of any delay, error, fault, failure or unavailability of the Contester Cloud Service for any reason; (b) applies only if the Contester Cloud Service is subject to downtime per section 7.1.1; and (c) applies only if the Order specifies that this section applies. If you elect to decline Support Services consisting of provision of this SLA, you acknowledge that we will have no liability or obligation in the event of any delay, error, fault, failure or unavailability of the Contester Cloud Service for any reason.
7.1.1 Warranty. Subject to 7.1.4, Contester warrants solely to you that Contester Cloud Service will achieve 99% uptime. The term “uptime” as used in this section means general availability of the intended functionality of the Contester Cloud Service.
7.1.2 SLA. As your sole and exclusive remedy, and our entire liability, for failure to comply with the uptime warranty of section 7.1.1, we will issue to you “Service Credit(s)”, defined as a monetary credit, as set out in the table in section 7.1.5 below, against Contester Cloud Service subscription fees due for the next full month following the month in which warranty noncompliance occurred. Service Credits will be granted upon confirmation of entitlement. Service Credits are not transferable and may be redeemed only against future payments otherwise due to us.
7.1.3 Process. In order to receive Service Credits, you must notify us within thirty days from the first occurrence of warranty non-compliance in order for you to receive a Service Credit, via email to [email protected]. Your notification must include the dates and times of alleged unavailability, including request logs that corroborate the claimed outage.
7.1.4 Exclusions. Your entitlement to Service Credits will not apply in the following circumstances: (a) downtime caused by the performance of internet services, networks or traffic exchange or control points controlled by entities other than us, or caused by network latency; (b) downtime caused by your acts, omissions, connections or equipment; (c) if the Contester Cloud Service becomes unavailable as a result of circumstances or causes beyond our reasonable control, including any force majeure event; (d) suspension or termination as permitted by these Terms; or (e) suspension or termination for emergency reasons, as required by law or any governmental authority or agency, or as needed in order for public safety, or to prevent or ameliorate violations or infringements of third party rights or applicable law.
7.1.5 Service Credits
7.2 Other Services. Subject to your compliance with these Terms, including payment obligations, we will provide Support Services to the extent set forth in the Order:
We will use commercially reasonable efforts to provide email help desk, query and incident support, in support of your use of the Contester platform, during the days and hours, and within the timeframes, corresponding to your support plan. You will use commercially reasonable efforts to minimize repetitive support inquiries.
All support incidents and error reports will be in a format specified by us, and will include all information requested by us in order to reproduce and diagnose the problem.
You represent and warrant that you have full right and authority to disclose to us any Authorized User or third party data or information for Support Services purposes.
Prior to initiating any support request of any kind, you must first have attempted to determine the cause of and resolve the issue. Only if the issue cannot be resolved after reasonably diligent efforts by capable and skilled IT personnel retained by you may you then initiate a support request with us as specified in this section. You will use reasonable efforts to reproduce the problem and gather all relevant and helpful information.
We will use commercially reasonable efforts to correct as soon as possible any delay, defect, failure or unavailability of the Contester platform.
We will implement for your benefit all upgrades, enhancements, ports, bug fixes, and new releases to the Contester platform when and if, in our sole discretion, developed by us. We will use commercially reasonable efforts to perform scheduled maintenance during off hours so as to minimize disruptions. In the event of any unscheduled or emergency maintenance, we will make every reasonable effort to minimize the impact on you, but cannot guarantee no negative impact on use.
We may provide other services as set forth in the Order, including training or set-up assistance.
8.1 Subscriptions. You will pay to us the fees listed, on the dates specified, in the Order. Current pricing information can be found here. You may be subject to a data transfer limit or overage charges as disclosed in the pricing page. Charges are imposed monthly at the beginning of the first month commencing after the Evaluation Trial. Unless otherwise specified in the Order, subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereafter. You agree to keep a valid credit card, or other form of payment acceptable to us on ﬁle, and to allow us to automatically charge that form of payment unless you speciﬁcally notify us otherwise in writing via the notice method required by these Terms. By providing us with a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. We may bill you in advance, at the time of purchase, shortly after purchase, or on a recurring basis for subscriptions. We will notify you in advance of any change in the amount to be charged for recurring subscription services. We may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed. You will not develop multiple Your Applications to simulate or act as a single Your Application or otherwise access the Contester platform in a manner intended to avoid incurring fees.
8.2 Orders. All payments are non-refundable and are exclusive of bank service fees or currency exchange settlements. Payments will be made via the method designated by us. In the event you are delinquent in the payment of any invoice, we may at our option suspend access to the Contester platform until such payments are made in full. Payments to us will be made without deduction, counterclaim or set-off of any kind.
8.3 Billing Statement. The details of your charges are set forth in the online billing statement we provide on the account site. This is the only billing statement we provide. It is your responsibility to print or save a copy of each billing statement and retain such copies for your records. If we make an error on a charge to your billing account, you must contact us with the details within 120 days from when the error first appears on your billing statement. If you do not inform us of the issue within that time, you release us from all liability and claims of loss resulting from the error and we will not be required to correct the error or provide a refund.
8.4 Response to Process. If we are required to respond to a subpoena or other formal request from a third party or a governmental agency for records or other information relating to the Contester platform or services we have performed or solutions we have provided for you or on your behalf, or to testify by deposition or otherwise, you will reimburse our time and expenses incurred in accordance with our then-current time and expense rates.
8.5 Taxes. You will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of the Contester platform (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you.
8.6 Enforcement. Except as prohibited by law, we may assess late compound interest on delinquent amounts, equal to the lesser of one percent of the unpaid amount each month or the maximum rate permitted by law. You will pay these late charges upon invoice. We may use a third party to collect past due amounts. You will pay all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs.
9.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Contester platform, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Contester platform, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the Contester platform by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the Contester Cloud Service, our computer systems, or the technical delivery systems of us or our providers; (g) publish, post, upload or otherwise transmit any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the Contester platform by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the Contester platform.
9.2 Illicit Access. You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Contester platform, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the Contester platform, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the Contester platform. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Contester platform.
10.1 Introduction Pursuant to the undertakings which follow from these Terms, we may process personal data as well as other information on behalf of you. This section 10 shall apply to all processing in which we are the processor on behalf of you as customer, and this data processor agreement shall remain in force for as long as Contester processes personal data on your behalf.
10.2 Definitions Unless the circumstances clearly indicate otherwise, definitions or terms used in this document shall be defined as follows from Article 4 of the General Data Protection Regulation.
10.3 Purpose and Type of Personal Data etc Personal data processed is for example end-user or end-customers names, video, emails, IP-addresses and photographs or other personal data in your Content or Your Applications. The categories of data subjects may be your employees, consultants and/or customers The processing conducted by us will be storing, amending, and displaying for the purpose of user management and ensuring that the Contester Software and Contester platform are functioning properly and provided to you in accordance with these Terms. Processing will take place for the duration of your use of the services and as long as your activities are active.
10.4 Generally regarding the Processing of Personal Data You are the controller of the personal data which is processed within the scope of the Terms. Contester is regarded as the processor on behalf of you. We will process personal data based on your instruction. This section 10 are considered as your instructions relating to the processing. If we believe that an instruction or notification from you would conflict with the General Data Protection Regulation, we shall be entitled to notify you and defer the processing in question.
Contester has provided sufficient guarantees that it shall take suitable technical and organisational measures to ensure that the processing of personal data meets the requirements of the General Data Protection Regulation and ensures protection of the rights of the data subject.
Taking into consideration the nature of the processing, we shall assist you by taking suitable technical and organisational measures, to the extent possible, to enable you to perform your obligation to respond to requests regarding the exercise of the data subject’s rights in accordance with chapter III of the General Data Protection Regulation.
10.5 Our personnel, etc. Contester , its employees, and other persons who perform work under Contester ’s supervision and who gain access to personal data belonging to you may only process such personal data on your instruction, unless such person is obligated to do so pursuant to Union law or Swedish national law, including in respect of transfers of personal data to a third country or an international organisation, and, in such case, Contester shall inform you of the legal requirement before the data is processed (unless such information is prohibited with reference to an important public interest under relevant national law).
Contester is entitled to compensation for additional costs incurred if you modify your instruction.
We shall ensure that our employees and all other persons for whom we are liable and who are authorised to process personal data covered by these Terms have undertaken to maintain confidentiality (unless such person is subject to an appropriate statutory confidentiality obligation).
10.6 Security Contester shall take all safeguards required under Article 32 of the General Data Protection Regulation. In conjunction with the assessment of an appropriate security level, particular consideration shall be given to the risks which follow from the processing, particularly resulting from unintentional or unlawful destruction, loss, or modification, from unauthorised disclosure, or from unauthorised access to the personal data which is transferred, stored, or otherwise processed.
Taking into consideration the type of processing and the information that Contester has, it shall assist you in ensuring that the obligations regarding security can be satisfied in a manner which follows from Article 32 of the General Data Protection Regulation.
10.7 Personal Data Breach We will notify you without undue delay after we become aware of a personal data breach. Taking into consideration the type of processing and the information available to us, we shall assist you in ensuring that the obligations arising due to any personal data breach can be fulfilled in a manner as required in articles 33-34 of the General Data Protection Regulation.
10.8 Impact assessment and prior consultation Taking into consideration the nature of the processing and the information which is available to us, we shall assist you in fulfilling its obligations, if any, to conduct an impact assessment and/or prior consultation with a supervisory authority pursuant to articles 35 and 36 of the General Data Protection Regulation.
10.9 Subprocessors You hereby grant us general approval to retain subprocessors to perform the work under these Terms. We shall inform you of any plans to retain a new subprocessor or to replace an existing subprocessor, in order to allow you to make objections to any such change (however, any objection must be based on an objectively acceptable reason). Information will be provided through notification on our website.
We shall ensure that any such subprocessor enters into a written personal data processor agreement before the subprocessor begins work related to you. Any such personal data processor agreement must contain the undertakings and obligations which follow from these Terms.
In the event the subprocessor fails to fill its obligations Contester shall be liable to you for the performance of the subprocessor’s obligations.
10.10 Transfer to a third country We may move, store, transfer, or otherwise process personal data belonging to you outside of the EU/EEA, provided such transfer meets the requirements and undertakings which follow from the General Data Protection Regulation.
10.11 Right to transparency Contester shall grant you access to reasonable information which is required and necessary to enable you to verify compliance with the obligations which follow from article 28 of the General Data Protection Regulation and to enable and assist in audits, including inspections, which are conducted by you or by an examiner authorised by you. Contester shall, at all times, be entitled to reasonable notice in the event you wish to exercise your right to conduct an audit or inspection and you shall compensate Contester for its costs incurred in connection with any such audit or inspection.
10.12 Liability The limitation of liability in section 11.2 shall apply to this section 10. The parties are aware that the limitation of liability shall not apply in conjunction with a claim for damages brought by a data subject and the right to claim back damages under article 82.5 of the General Data Protection Regulation.
10.13 Duration of the processing When we discontinue the processing of personal data on behalf of you, we will return all personal data to you in the manner instructed by you or, upon your written notice, destroy and erase all personal data which is associated with the services.
Following discontinuation of the processing we shall not be entitled to save any personal data belonging to you and, as soon as we have complied with the provisions above, our right to process or otherwise use personal data belonging to you shall cease (provided storage of personal data is not required pursuant to national law or Union law, or we have legal grounds to process relevant personal data).
11.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, except as set forth in the SLA, we provide the Contester platform and Services Deliverables on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO the Contester platform, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Contester platform will meet your requirements, goals or needs, (b) Contester platform access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Contester platform will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that your Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of your Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Contester platform.
11.2 Exclusion. Notwithstanding any other provision of these Terms, our maximum cumulative aggregate liability for all claims, liabilities or obligations arising under or relating to the “Subject Matter” (defined as these Terms, their performance or non-performance, end users, Authorized Users, Content, Other Applications, Services Deliverables, and the Contester platform), regardless of the number of claims or the theory of liability, whether for breach of these Terms, including breach of warranty, or in tort or otherwise, will not exceed all amounts paid by you to us under these Terms, if any, during the three-month period preceding the occurrence of the claim or event giving rise to liability. We will not be liable for any indirect, punitive, special, incidental or consequential damages, or liable for interruption of business, diminution of value, cost of replacement, downtime, loss of profits, revenue, use, data, Other Applications, or other economic advantage, in connection with, related to or arising out of the Subject Matter, regardless of the theory of liability, whether for breach of these Terms, including breach of warranty, or in tort or otherwise, even if we have been previously advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this section allocate the risks under these Terms between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting the Subject Matter exclusively in contract pursuant to these Terms, and each party expressly disclaims that such party is owed any duties or are entitled to any remedies not expressly set forth in these Terms. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
11.3 Indemnification. You hereby agree to fully indemnify, defend and hold harmless us, our affiliates, and officers, directors, employees and agents of us and our affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) Other Applications; (b) your Authorized Users or any conduct or activity of your Authorized Users; (c) breach of these Terms; (d) infringement of intellectual property rights; or (e) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any such claims without our prior written consent.
11.4 General Release. You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.
12.1 Term. Access to the Contester platform commences upon acceptance of or as applicable the date set forth in the Order and will continue in effect as specified in the Order. These Terms will remain in effect for as long as any Evaluation Trials or subscriptions are in effect. We will inform you by email before automatically renewing your subscription. Once we have informed you that your subscription will be automatically renewed, we may charge you the then current price for the renewal term. We will also provide you with instructions on how you may cancel the subscription. You must cancel the subscription before the renewal date to avoid being billed for the renewal.
12.2 Termination. In addition to sections 13.1 and 13.2, a subscription will terminate immediately upon your breach of these Terms. We may additionally terminate a subscription in the event your or any of your Authorized User’s manner of using the Contester platform exceeds normal and reasonable usage, including via unauthorized automated (non-human) initiated requests, or otherwise, and such excessive or detrimental use has not been corrected by you within one business day of our written notice to you. We may additionally terminate a subscription upon written notice to you if you (a) become the subject of a legal proceeding under a law relating to insolvency or bankruptcy; (b) or your property becomes under the control of a custodian or equivalent under applicable law, or your property is assigned for the benefit of creditors; or (c) generally fail to pay your debts as they become due or acknowledge in writing that you are unable to do so.
12.3 Effect. The rights of either party under this section 12 are in addition to any other rights and remedies permitted by law or under these Terms. Breach of these Terms may result in pursuit of all available remedies for intellectual property rights (including intellectual property rights infringement), the availability of which you hereby acknowledge. Upon termination for any reason, all licensed rights granted under these Terms, access to the Contester Cloud Service, and all Support Services will terminate, and you will immediately cease all use and distribution, and destroy all copies, of the Contester Software.
12.4 Survival. Access to and rights of use associated with the Contester platform will terminate upon termination of any subscription. Sections 1.0, 2.3, 2.4, 2.5, 3.0, 4.2 through 4.8, 5.0, 6.0, 8.0, 9.0, 11.0, 12.3, 12.4 and 13.0 will survive any termination or expiration of these Terms or any subscription.
13.1 Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the Contester platform. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.
13.2 Account Termination. We may terminate your account for cause, including without limitation for: (a) violation of these Terms; (b) abuse of Contester resources or any attempt to gain unauthorized entry to the Contester platform; (c) use of the Contester platform in a manner inconsistent with its purpose; (d) any Contester user’s request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the Contester platform for our own business reasons, including if we elect to cease being in the business of providing it. After account termination, you will not attempt to register a new account without our permission.
13.3 Trademarks; Media. You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including Contester™. You hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected the Contester platform.
13.4 US DMCA. If you believe that your work has been copied and is accessible via the Contester platform in a way that constitutes copyright infringement in the United States, you may notify us by providing the following in writing:
identification of the copyrighted work that you claim has been infringed;
identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
your name, address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
The above writing must be electronically or physically signed by you as the owner of the content claimed to be infringed or the owner’s authorized agent. If we receive such a claim, we may refuse or delete the applicable content, or terminate the applicable user’s account in accordance with these Terms. Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 is available at:
Contester Technologies OÜ
We may remove content alleged or in our judgment to be infringing or otherwise illegal, without prior notice and at our sole discretion. In appropriate circumstances, we may also terminate a user’s account if the user is determined to be a repeat infringer.
If you believe that a notice of infringement has been improperly submitted against you, you may submit a counter-notice, electronically or physically signed by you, and containing the following:
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
your name, address, and telephone number;
a statement, made under penalty of perjury, that you have a good faith belief that the removal of the material was a mistake or misidentified; and
a statement that you consent to the jurisdiction of Federal District Court (i) in the judicial district where your address is located if the address is in the United States, or (ii) for the Northern District of California (San Francisco County), if your address is located outside the United States, and that you will accept service of process from the complainant submitting the infringement notice or his/her authorized agent.
13.5 Estonian-Based. the Contester platform is controlled by us from our office in Estonia. We make no representation that the Contester platform is appropriate for use in other jurisdictions. Your use of or access to the Contester platform will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than Estonia.
13.6 Governing Law. The Subject Matter (as defined in section 11.2), and any disputes between us and related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of Estonia.
13.7 Dispute Resolution. (A) Any disputes between or claims brought by you or us arising out of or related to the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes (subject to section 13.7(B) below) will be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce in effect at the time of arbitration except as inconsistent with this section. The arbitration will be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings will be held in New York City, New York if you reside in or are headquartered in North or South America, or Tallinn, Estonia, if you reside or are headquartered anywhere else. We will be responsible for payment of arbitration fees if (a) you are an individual bringing claims in your individual capacity; (b) your claim is not frivolous and brought in good faith and not for an improper purpose; and (c) your claim does not exceed $10,000. The arbitrator will apply the law specified in section 13.6 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers’ fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion. (B) Notwithstanding the foregoing, nothing in this section will preclude the right and ability to bypass arbitration and file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto, and either party’s right to do so is not arbitrable.
13.8 Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred.
13.9 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
13.10 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Contester platform, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
13.11 Miscellaneous. The Terms constitute the entire agreement between you and us and govern your use of the Contester platform, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between these Terms and any Contester website page (including any page describing or summarizing your or our rights, obligations, and/or these Terms), these Terms will control. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. The parties hereto confirm that they have requested that these Terms and all attachments and related documents, if any, be drafted in English.