Terms of Use

Use of Site/General Purchase Terms

1. Acceptance of Terms. By using the Site, you agree to the terms and conditions in this Agreement between you and TestFiesta. You must accept the Terms, in full, before using the Site. You can accept the Terms in one of three ways: (a) by clicking to “accept” or “agree” to the Terms, where this option is presented or made available to you on the Site; (b) by actually using the Site; and/or, (c) by making purchases of TestFiesta products, including any Subscriptions Services. BY USING THE SITE, YOU AGREE TO THE TERMS, IN FULL. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SITE. EXCEPT AS OTHERWISE PROVIDED, THE TERMS ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE AND YOUR CONTINUED USE OF THE SITE, AFTER ANY CHANGE(S) HAVE BEEN IMPLEMENTED CONSTITUTES ACCEPTANCE BY YOU OF SUCH CHANGE(S).
2. Privacy Policy. TestFiesta cares about the privacy of our users. TestFiesta’s Privacy Policy applies to the use of the Site, and its terms are made a part of the Terms by this reference. Additionally, by using the Site, you acknowledge that the Internet is not a secure environment and sometimes there are interruptions in service or events that are beyond the control of TestFiesta and that communications with TestFiesta can never be guaranteed to be secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if a particular transmission is encrypted. Nonetheless, we employ reasonable measures to protect your information from unauthorized use or disclosure. While we make these reasonable precautions against loss or theft of data, TestFiesta shall not be responsible for any data lost or stolen while transmitting information on the Internet. TestFiesta strives to keep the site up and available 24 hours per day, 7 days per week, but there will occasionally be outages for routine maintenance or other unforeseen circumstances.
3. Services. TestFiesta provides various tools to you to perform software testing through our SaaS application (the “Services”). All users for the Services must create a personal account. Once you have created a personal account, you will have the option to create an organizational account if you would like to use the services commercially as further outlined herein. By creating an account and using the Services, you agree that the Services are made available to you in accordance with the following license: if you are an organization or organizational user, subject to your payment of all fees and compliance with the terms and conditions of this Agreement, or if you are an individual subject to compliance with all terms and conditions of this Agreement, TestFiesta hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the subscription term in that you have paid for if you are an organization user or until we terminate your term hereunder or until you or we terminate your Services if you are an individual user. For organizations, you may only use the Services as part of your internal business operations. For individual accounts, you may only use the Services for your personal use.
4. Use and Restrictions. The Site may be accessed and used only by individuals who are 13 years of age or older, and who are not barred from using the Site under applicable laws. You may access and use the Site only in accordance with all applicable laws and regulations and with these Terms of Use. You acknowledge and agree that TestFiesta, in its sole discretion and without notice or any further obligation to you, may temporarily suspend or permanently discontinue and refuse any and all current and future access to or use of the Site if you are found to be under the age of 18. Entering into subscriptions for the Service may only be done by individuals 18 and older who can legally enter into binding agreements.
5. Accounts. If you wish to purchase a Subscription Service through the Site or use the Services for personal use, you must create a user account. Such account will keep track of your purchases, subscriptions, and account information. You agree to keep your account information current, accurate, and complete so that TestFiesta may send notices, statements, and other information to you via email or through your account. This will include notifications about this Agreement and our Privacy Policy.  You will be responsible for maintaining the confidentiality of your user login information and credentials for accessing the Services and your account. Please notify TestFiesta immediately if there is any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which you become aware of. TestFiesta is not liable for any damage or loss that may result from your breach of the foregoing obligations.
6. Passwords. To create an account, you will be required to choose a unique username and strong password. TestFiesta is not responsible for inappropriate sharing of logins and passwords and further, sharing of login information may result in termination of your use of the Site. You further agree and acknowledge that all personal accounts are to only be used by one individual and sharing of accounts may result in suspension or deletion of the account.
7. Credit Card Charges. TestFiesta uses Stripe.com to provide billing services. By entering your credit card information, you agree and acknowledge that you will be bound by Stripe.com’s terms of use and privacy policy in addition to the policies of this Site. You will be billed a monthly fee for the Subscription Services purchased until such time that this Agreement is terminated.
8. Disputes. You agree to submit any disputes regarding any charge to your account in writing to TestFiesta within thirty (30) days of such charge, otherwise such dispute will be waived, and such charge will be final and not subject to challenge.
9. Returns. All purchases made through the Site are final unless otherwise stated. If you believe there has been an error on unauthorized charge please contact support at support@testfiesta.com.
10. Subscription Services Descriptions. In describing and portraying the Subscription Services on the Site, we attempt to be as accurate as possible. We reserve the right to correct any typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability from time to time without prior notice.
11. Modifications. Any Subscription Services offered on our Site are subject to modification or discontinuation at any time. If material changes in our offering are made, we will make reasonable efforts to inform those affected and such changes will be effective at the next renewal term.
12. Acceptable Use. By using the Site and/or the Services, you agree that you will not directly or indirectly do any of the following: (i) use the Services to process data on behalf of any unauthorized third party other than your organization; (ii) violate applicable law; (iii) use the Services to store or transmit any content that infringes upon any third party’s intellectual property rights; (iv) use the Services for competitive intelligence or performance benchmarking purposes; (v) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party other than those with rights under your organization account, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (vi)  decompile, reverse engineer, disassemble, reproduce, or copy, modify, create derivative works or otherwise access or discover the source code or underlying program of any portion of the Services; (vii) use or access the Services in order to build a competitive product or service; (viii) interfere with or disrupt the integrity or performance of the Services or any data contained therein; or (ix) perform vulnerability, load or any other testing of the Services.
13. Restricted Use. You represent and warrant that neither you nor any of your users shall upload or transmit to the Service any data (a) to be used in military or nuclear applications, (b) regulated pursuant to the Health Insurance Portability and Accountability Act of 1996, the Payment Card Industry Data Security standards, or the Gramm-Leach-Bliley Act, or (c) that would constitute special category or sensitive personal data under applicable privacy laws including federal and state laws.

Subscription Services

14. Subscription Services. TestFiesta offers a subscription service to the Services (the “Subscription Services”) that is billed monthly (“Billable Subscription Paid Monthly”). The paid Subscription Services allows you to manage an organizational account where you can add additional users, assign tasks, and monitor usage throughout your organization.
15. Non-Paid Subscription Services. TestFiesta currently offers a free version of the Subscription Services which may be used by a single user for personal use only. These accounts are not for commercial use and cannot be used by organizations. TestFiesta reserves the right to terminate the non-paid Subscription Services or require payment for continued use at any time in TestFiesta’s sole discretion. Use of a non-paid Subscription Service requires compliance with all applicable terms and conditions of this Agreement.
16. Billable Subscriptions Paid Monthly. By purchasing a Billable Subscription Paid Monthly, you acknowledge that your subscription is a monthly subscription where the payments will be billed monthly. Your subscription will be automatically extended for successive monthly periods until either you or TestFiesta cancels your subscription, and your payment method will automatically be charged for each successive monthly period at the then-current subscription rate. TestFiesta may submit monthly charges without further authorization from you until you provide notice that you have terminated this authorization or wish to change your payment method. Should your billing method fail at any time, we reserve the right to suspend your subscription until your billing information is updated. To cancel your Billable Subscription Paid Monthly, you must login to your account and click the Cancel Subscription button in your Organization settings. If you cancel, you will be billed on the day of cancellation based on your usage as of the cancellation date and your ability to use the services will cease on that day.
17. Organizational Account Owners. If you have an active subscription as an Organizational Account Owner, you will have the ability to add or remove users in your Organization at any time.  You may also assign permissions to users through Roles that will allow them the ability to add or remove users.  At the conclusion of your billing period, TestFiesta will record the maximum number of active users in your account at any one time during the recently ended billing period and charge your credit card based on that number.  Please manage your users carefully since this will determine your monthly bill.
18. Data Storage. You will be able edit and download information within your Organization only while you have an active subscription. Following termination of your subscription, your Organization will be set to "read-only" and the data may be deleted at any point thirty days after your subscription has been terminated at our discretion. If your data is deleted during a period where you are unsubscribed you may not be able to recover the data even if you reactivate your subscription. We recommend you export all data before ending your subscription if you would like to retain that data without an active subscription.
19. Applicable Taxes. The Billable Subscription Paid Monthly fee does not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You agree to pay applicable direct or indirect Taxes associated with your purchases hereunder.
20. Suspension. TestFiesta may suspend your account, including all access to the Services, on the following grounds: (i) late payment/non-payment of undisputed Billable Subscription Paid Monthly fees; (ii) non-renewal of the Subscription Services by you; (iii) our termination of the Services due to your breach of any terms of this Agreement; or (iv) in the event suspension is deemed necessary by TestFiesta to prevent or address the introduction of malicious software, a security incident, or other harm to TestFiesta or any other person or entity by your use of the Services.

User and Third-Party Content/Communications

21. User Communications and User Content. All information submitted to the app.testfiesta.com application is your data. All information that is submitted to us outside of this is considered “User Communications” and includes such information such as suggestions for future products, ideas to improve the services offered, feedback about the services, questions, comments or other communication, you warrant that such content is original to you, that you own all applicable legal rights in such content, and that the content does not and will not infringe upon the rights of any other person or entity. Further, by submitting any User Communication, you agree and acknowledge that you have expressly granted TestFiesta a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such material. You agree that TestFiesta shall be under no obligation: (a) to maintain any User Communication in confidence; (b) to pay compensation for any User Communication that we use in any way; and/or, (c) to monitor, use, return, review or respond to any User Communication.
22. Links to Third Party Websites. The Site may contain links to websites and other resources operated by third parties other than TestFiesta. Such links are provided solely as a convenience to you. TestFiesta does not control such websites, and is not responsible for the content, products, services, or information offered by any third parties. The inclusion of links to such websites on the Site does not imply any endorsement of any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person. If you decide to access any third-party websites or acquire any third-party products or services, you do so entirely at your own risk, and you may be subject to the terms and conditions and the privacy policies imposed by such third parties.
23. Your Ownership Rights. You retain all right, title, and interest in and to the information that you submit to the Services that are to be used as part of the Subscription Services such as your testing data (“Customer Data”) provided under this Agreement, and TestFiesta obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. Customer Data does not include any information that you submit to TestFiesta that is not under the Subscription Services, such as user feedback or information to create your account. You grant TestFiesta the right to perform all acts with respect to the Customer Data as may be necessary to provide the Services to you as well as maintain and improve the Services, as agreed to in our Privacy Policy, or as may be required by law. You are solely responsible for the accuracy, content, and legality of all Customer Data. You warrant and represent that you have and will have sufficient rights in the Customer Data to grant the rights to TestFiesta under this Agreement.

Liability/Warranties

24. PRODUCT LIABILITY. IN NO EVENT WILL TESTFIESTA BE LIABLE TO YOU FOR ANY DAMAGES CAUSED BY THE USE OF PRODUCTS OR SERVICES ON THIS SITE. YOU AGREE AND ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO USE THE PRODUCTS AND SERVICES IN A SAFE MANNER AND TO USE THE PRODUCTS AND SERVICES AS DIRECTED. YOU TAKE FULL RESPONSIBILITY FOR THE USE OF ANY PRODUCT OR SERVICES YOU BUY THROUGH THIS SITE AND ANY INJURIES, INCLUDING ECONOMIC INJURIES, THAT OCCUR THROUGH THE USE OF THE SERVICES ON THE SITE AND AGREE TO INDEMNIFY AND HOLD HARMLESS TESTFIESTA FOR ANY INJURIES CAUSED BY THE USE OF SUCH PRODUCTS AND SERVICES.
25. WARRANTIES AND DISCLAIMER. THE SITE, USER COMMUNICATIONS, AND ANY CONTENT PROVIDED VIA THE SITE, INCLUDING LINKS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH NO WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TESTFIESTA DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, USER COMMUNICATIONS, THE CONTENT AND ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM ERRORS, OMISSIONS, COMPUTER VIRUSES, OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, AND IMPLIED WARRANTIES OR CONDITIONS ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, TESTFIESTA DOES NOT REPRESENT OR WARRANT THAT THE SITE, USER COMMUNICATIONS, CONTENT OR ANY PRODUCTS, SERVICES OR ANY OTHER INFORMATION ACCESSIBLE VIA THE SITE IS SECURE, ACCURATE, COMPLETE OR CURRENT. AS A CONDITION OF YOUR USE OF THE SITE, YOU WARRANT TO TESTFIESTA THAT YOU WILL NOT USE THE SITE FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THESE TERMS OF USE.
26. LIMITATION OF LIABILITY. TESTFIESTA AND ITS PARENT, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND THIRD PARTY PARTNERS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES OR FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OR OTHER DAMAGES IN CONNECTION WITH ANY UNAVAILABILITY OR NONPERFORMANCE OF THE SITE, ERRORS, OMISSIONS, VIRUSES AND MALICIOUS CODE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUBJECT TO APPLICABLE LAW, TESTFIESTA’S TOTAL AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO TESTFIESTA UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS, MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS TO THOSE CONTAINED HEREIN. THE PARTIES AGREE THAT THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAP SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO (A) YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, (B) A VIOLATION OF TESTFIESTA’s INTELLECTUAL PROPERTY RIGHTS; OR (C) CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

Intellectual Property Information

27. Ownership of the Site, Content, and Trademarks. The Site and the Services are owned and controlled by TestFiesta and unless otherwise agreed in writing, all materials on our Site, including the Services, text, graphics, information, content, images, illustrations, designs, icons, photographs, video clips, sounds, music, artwork, computer code, and other materials, and the copyrights, trademarks, trade dress, and/or other intellectual property rights in such materials (collectively, the “Content”), are owned, controlled, and/or licensed by TestFiesta. The Site, the Services, and Content are intended solely for your personal, non-commercial use unless a Subscription Service is purchased on behalf of an organization in which case you may use it for the internal use of your organization as provided under this Agreement. You may not download and/or copy any of the Content or the Services without permission from TestFiesta unless such permission is explicitly granted on the Site. Any permitted downloads or permitted copies of the Content or Services are for your personal use only. No right, title, or interest in any downloaded and/or copied Content or the Services is transferred to you as a result of any such downloading and/or copying. You may not reproduce (except as noted above or on the Site), publish, transmit, distribute, display, perform, alter, modify, create derivative works from, sell, exploit, and/or otherwise use any of the Content, the Services, or the Site for any public or commercial purpose. TestFiesta also owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. You may not upload or republish Site Content, including the Services, on any Internet, Intranet, or Extranet site or incorporate the information in any other database or compilation. TestFiesta does not permit use of any data mining, robots, scraping, and/or similar data-gathering or extraction methods. Certain trademarks, trade names, service marks, and logos used or displayed on this Site are registered and unregistered trademarks, trade names, and service marks of TestFiesta and its affiliates. Other trademarks, trade names, and service marks used or displayed on this Site are the registered and unregistered trademarks, trade names, and service marks of third parties. Nothing contained on the Site grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to you to use any such trademarks, trade names, service marks, or logos displayed on such Site.
28. Trademark. All trademarks, service marks, trade names, logos and trade dress, whether registered or unregistered including, but not limited to, TestFiesta, Test Fiesta, TestFiesta.com, Test Fiesta, LLC, and our logo (collectively the "Marks") that appear on the Site are proprietary to TestFiesta or such Marks' respective owners. You may not display or reproduce the Marks other than with the prior written consent of TestFiesta, and you may not remove or otherwise modify any trademark notices from any Content. In addition, all page headers, custom graphics, button icons, and scripts are trademarks, service marks, trade names and/or trade dress of TestFiesta or their respective owners, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of TestFiesta.
29. Copyright, Trademark, and Intellectual Property Complaints. TestFiesta respects the intellectual property rights of others. We are committed to complying with copyright and related laws, including the Digital Millennium Copyright Act (DMCA), and we require all users of the Site to comply with these laws. Accordingly, you may not upload, post, store any material or content on, disseminate any material or content over, or otherwise transmit to or on the Site in any manner material that constitutes an infringement of third-party intellectual property rights, including but not limited to, rights granted by copyright law. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. When TestFiesta receives proper Notification of Alleged Copyright Infringement, TestFiesta promptly removes or disables access to the allegedly infringing material upon conclusion that the material infringes upon another’s rights and terminates the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act. If you believe that any material on the Site infringes upon any copyright that you own or control, please contact us at support@testfiesta.com for more information on how to report infringement of your copyright. TestFiesta may, at its sole discretion, terminate any Users who are deemed by TestFiesta to have committed copyright infringement, whether or not there is any repeat infringement.
30. Export Compliance and Use Restrictions. The Services may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). You agree to comply with all the Export Control Laws as they relate to access to and use of the Services and such other components by you. You may not under any circumstance access or use the Services if you are located in any jurisdiction in which the provision of the Services or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including, without limitation Cuba, Iran, North Korea, Syria or the Crimea) (a “Prohibited Jurisdiction”) either in such location or through a VPN or other means that masks your location. You agree and acknowledge that you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You agree and acknowledge that the Services may not be available in all jurisdictions and that you are solely responsible for complying with the Export Control Laws. If we believe that you are accessing the Services through a Prohibited Jurisdiction, we may immediately terminate your use of the Services.

Termination

31. Termination of Agreement. TestFiesta may terminate this Agreement at any time. Without limiting the foregoing, TestFiesta shall have the right to immediately terminate your use of this Site in the event of any conduct by you that TestFiesta, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of this Agreement.
32. Termination of Use of Site if Under 13. TestFiesta may terminate your use of the Site, delete any content or information that you have posted on the Site, refuse any orders, and/or prohibit you from using or accessing the Site for any reason if we believe that you have accessed this Site and are under 13 years of age or violate these Terms of Service.
33. Termination by User. You may terminate this Agreement at any time. If you have an active Subscription Service you will be required to immediately pay all subscription fees prorated up through the day of termination.

Miscellaneous

34. Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant, or agreement contained herein or therein and in any documents delivered in connection herewith or therewith. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
35. Time for Claims. YOU AGREE THAT ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THIS OR ANY OTHER SITE WE OWN OR OPERATE OR THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE DISPUTE, CLAIM OR CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH DISPUTE, CLAIM OR CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
36. Headings. The headings and captions of this Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent of this contract, or the intent of any provisions hereof.
37. Severability. If a court of competent jurisdiction holds any provision of this Agreement invalid, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement and the remaining portions of this Agreement shall continue in full force and effect.
38. Governing Law; Venue and Jurisdiction. By using the Site and/or purchasing products, including Subscription Services, from this Site, you agree that the laws of the State of Colorado, without regard to conflicts of law provisions and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, will govern these Terms of Use and any dispute of any sort that might arise between you and TestFiesta. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of Denver, Colorado, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Colorado.
39. Indemnity. You agree to indemnify and hold TestFiesta, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs, and expenses, including reasonable attorneys fees, arising out of or in connection with any use of the Site, your conduct in connection with the Site, or with other users of the Site, or any violation of this Agreement or of any law or the rights of any third party.
40. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this agreement or the use of the Services. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify TestFiesta.
41. No Assignment. No modification or amendment of this Agreement by you shall be valid unless in writing.
42. Successors and Assigns. Rights and obligations created by this contract shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
43. Number and Gender. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders.
44. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay any Subscription Services fees or other amounts due to the other Party) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited, acts of God, acts of government, epidemic, pandemic, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all subscriptions then in effect on written notice to the non-performing party.
45. Definitions and Constructions. Unless otherwise specified, the terms "includes", "including", "e.g.,", "for example", and other similar terms are deemed to include the term "without limitation" immediately thereafter. Terms used in this Agreement with the initial letter(s) capitalized will have the meaning attributed to them in this Agreement.
46. Electronic Communications. You consent to receive electronic communications from TestFiesta either in the form of email sent to you at the email address listed on your account or by communications posted on the Site. You acknowledge and agree that any electronic communication in the form of such email or posting on the Site shall satisfy any legal requirement that such communication be in writing.