Sensitive Information Handling
Customer represents that it shall be solely responsible with regard to the nature and extent of the sensitive information collected from its clients and potential clients.
Application of EU – GDPR
To the extent HyperTest processes any Customer Data to which the provisions of the European Union’s General Data Protection Regulation applies, the terms of the Data Protection Addendum will apply. Customer agrees that HyperTest may process the Customer Data in any location of HyperTest, its affiliates, partners and service providers, in accordance with the terms of the Data Protection Addendum.
Restricted use of Customer Data
Aggregate and anonymised data
HyperTest may monitor use of the Project Services by all its customers and use the data gathered in an aggregate and anonymous manner. Customer agrees that HyperTest may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.
HyperTest shall adopt and maintain appropriate organizational and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data.
HyperTest may suspend access to Customer’s account after giving 30 ( Thirty) days’ prior written notice to Customer, in case any amounts remain due and payable upon completion of the payment period set out in this Agreement or the relevant Order Form or Statement of Work.
HyperTest may also suspend access to Customer’s account with immediate effect if (i) there is unauthorized access to Customer’s account; (ii) there is a violation of Acceptable Use Policy; (iii) Customer’s use of the Services is in violation of applicable laws or regulations; or (iv) Customer’s use of the Services poses a risk to the Platform or other users of the Services.
If the reason for the suspension continues for a period of 15 (fifteen) days, HyperTest may proceed to terminate this Agreement or the relevant Order Form or Statement of Work, without prejudice to other remedies that may be available under this Agreement or applicable laws.
Upon expiry or termination of any of the Services, all payments that are due and payable therefor shall immediately become due and payable, irrespective of the Billing Cycle. HyperTest shall not be liable to provide any refunds to the Customer, except, where the termination is by the Customer on grounds of material breach by HyperTest, HyperTest shall refund pro-rata any Project Fees for the unexpired portion of the Project Term.
For a period of 30 (thirty) days following expiry or termination, HyperTest will retain the data stored by Customer on the Platform. Within this period, Customer can request HyperTest to keep the account active for an additional fee or provide a copy of the contacts stored in Customer’s account. Upon completion of the afore-mentioned period of 30 (thirty) days, HyperTest will permanently delete all data in Customer’s account, without retaining any copy thereof. Customer agrees that HyperTest is not liable for any such deletion of data.
In respect of Free Services, HyperTest does not undertake to provide any access to or copy of the data stored in Customer’s account post expiry or termination of the access; all such data will be deleted from the Platform.
All terms hereof, which by their nature survive termination (including but not limited to terms pertaining to intellectual property rights, data privacy, confidentiality, indemnity and dispute resolution) shall survive the expiry or termination of this Agreement.
HyperTest shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of such third party; provided that Customer (i) promptly gives written notice of the claim to HyperTest; (ii) gives HyperTest sole control of the defense and settlement of the claim (provided that HyperTest may not settle any claim unless it unconditionally releases Customer of all liability); and (c) provides to HyperTest, at HyperTest’s cost, all reasonable assistance.
Customer shall defend, indemnify and hold HyperTest harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings made or brought against HyperTest by a third party alleging that Customer Data or Customer’s use of the Services infringes the privacy rights or intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that HyperTest (i) promptly gives written notice of the claim to Customer; (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless it unconditionally releases HyperTest of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
DISCLAIMERS & LIMITATIONS OF LIABILITY
HyperTest MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICES, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICES, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICES AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND AND HyperTest DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICES AND THE CONSULTING SERVICES, INCLUDING WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS OR ANY OF ITS AFFILIATES, BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS (INCLUDING SUBSTITUTION OF SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY THIRD PARTY SERVICES DELIVERED IN CONNECTION HEREWITH EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY; AND IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILTY HEREUNDER (OTHER THAN FOR CLAIMS FOR INDEMNITY AND PAYMENT OF FEES DUE) EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO HyperTest IN THE PREVIOUS MONTH