Mobitru – End User Terms
PART A – MOBITRU END USER TERMS
1. Acceptance of the End User Terms. By accessing, linking to, or using the Product you confirm your acceptance of these End User Terms. EPAM Systems, Inc. (“EPAM”) reserves, and shall have, the right to amend, remove, or add to the End User Terms at any time. EPAM shall make you aware of such amendments which shall be effective immediately. Your access, link to, or use of the Product, after the effective date of the amended End User Terms will constitute your acceptance of the End User Terms, as amended.
2. Description of Product and License. EPAM makes available a platform that provides cloud-hosted or on-prem device infrastructure or both for development and testing mobile native, hybrid and web apps in real-time. The platform allows remote access to real devices running certain operating systems and enables certain features to allow mobile developers and testers remote control of such devices to perform manual or automated testing (the “Product”). You acquire no rights in the Product other than the limited right to utilize the Product in accordance with these End User Terms. EPAM grants to you a non-exclusive and non-transferable license to use the Product and related documentation pursuant to these End User Terms and subject to payment of applicable license fees.
3. Third Party Content. As part of the Product, EPAM may occasionally link to, or promote websites, services, content or data from other companies or offer you the ability to download digital files created by other companies (“Third Party Content”). Third Party Content is ultimately under the control, and is the sole responsibility, of third party owners and licensors of such content. YOU AGREE THAT ANY USE OF THIRD PARTY CONTENT SHALL BE MADE AT YOUR OWN DISCRETION AND RISK. EPAM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR THE FITNESS OF THIRD PARTY CONTENT FOR ANY PURPOSE.
4. Use of Product and Restrictions on Use. You may not use the Product for any illegal purpose, for the facilitation of the violation of any law or regulation, or in any manner inconsistent with these End User Terms. You agree to use the Product solely for your own use and benefit, and not for resale, sublicense or other transfer or disposition to, or use by or for the benefit of, any other person or entity. Except as expressly permitted by us in writing you may not copy, reproduce, recompile, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, upload to, create derivative works from, transmit, transfer, sell, license, upload, edit post, frame, link, or in any way exploit any part of the Product, except that you may download material from the Product and/or make one print copy for your own personal use, provided that you retain all copyright and other proprietary notices.
5. End User Data. “End User Data” means all information, data, and other content, in any form or media, that is submitted or otherwise transmitted by or on behalf of End User via the Product, as well as the test logs, screen shots, videos and analytics reports generated for End User in the course of End User’s use of the Product, as may be further described in the End User Terms. End User Data does not include usage data and, unless specifically authorized in the End User Terms, should not include any personal data, production, or other sensitive data. Unless specifically authorized in the End User Terms, End User may only upload non-sensitive, non-production data (e.g. synthetic or “dummy” test data) in connection with End User’s use of the Product. End User will ensure that End User’s use of the Product and all End User Data is at all times compliant with security and privacy policies of the organization they represent and all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical data. End User is solely responsible for the accuracy and content of all End User Data provided by End User. End User represents and warrants to EPAM that End User Data does not infringe, misappropriate or otherwise violate the rights of any third party. If End User uploads a mobile application for use with the Product, EPAM will retain a copy of that application for use by End User in subsequent tests.
6. Indemnity. You agree to defend, indemnify and hold harmless, EPAM and affiliates together with their respective employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Product, any breach or alleged breach of the End User Terms, any End User Data or any infringement of the copyright, trademark, service marks, proprietary or other rights of any third parties to the extent that the liability, claims, damages and expenses are a result of negligence or willful misconduct on your part.
7. Proprietary Rights. You acknowledge and agree that the Product and any software used in connection with the Product contain proprietary and confidential information belonging to EPAM or its licensors and is protected by applicable laws. If you provide feedback related to Product, such feedback shall be considered the property of EPAM and may be used by EPAM for any purpose without compensation to you. You further agree not to use the Product or Third Party Content in any way which may cause any kind of damage to EPAM or infringe on the intellectual property rights of content owners. “Mobitru” is a trademark of EPAM Systems, Inc. All rights are reserved. All other trademarks which you may encounter while using the Product are the property of their respective owners. The license granted hereunder does not include any rights to use EPAM’s name, logo or marks.
8. Disclaimer. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE PRODUCT IS AT YOUR SOLE RISK AND ACKNOWLEDGE THAT THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, CONTENT, SERVICES, GOODS, OR REPRESENTATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOU FURTHER AGREE THAT EPAM MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
- EPAM MAKES NO WARRANTY THAT (A) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCT WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY PRODUCT, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCT WILL MEET YOUR EXPECTATIONS, OR (D) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCT IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EPAM OR THROUGH OR FROM THE PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE END USER TERMS.
9. Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAWS, NEITHER PARTY HERETO, NOR ITS RESPECTIVE SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL BE LIABLE TO THE OTHER PARTY HERETO, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE OR SUCH PARTY OTHERWISE WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM ANY USE OF THIS SITE AND PRODUCT. EXCEPT FOR FEES DUE AND OWING BY YOU FOR THE PRODUCT AND THE INDEMNIFICATION IN SECTION 6, NEITHER EPAM NOR YOU SHALL BE LIABLE FOR DAMAGES IN EXCESS OF, AND LIABILITY SHALL BE LIMITED TO, USD $1,000.
10. Termination. You agree that EPAM, in its sole discretion, may terminate, change or limit all or any of the Product, or their availability to you, notice at any time and without prior notice, with or without cause. If EPAM terminates any of the Product without cause, EPAM shall refund on a pro rata basis any pre-paid unused fees for such terminated Product. You agree that you may terminate the agreement for convenience at any time without prior written notice, with or without cause. If you terminate the agreement without cause, all subscription fees already paid for future periods will be forfeited. Any unpaid fees for services already performed will be payable immediately.
11. Force Majeure. EPAM shall not be liable hereunder for any failure or delay in the performance of its obligations under these End User Terms if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event EPAM shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.
12. Import/Export Restrictions. You agree not to import or export the Product in violation of any applicable laws or regulations of the United States or the country to which you have imported or exported. You agree to indemnify EPAM from liability if you violate any such laws or regulations.
13. Governing Law. These End User Terms shall be governed by, and construed in accordance with, the laws of the State of Delaware and you agree to be subject to personal jurisdiction in the State of Delaware for the purposes of enforcing these End User Terms.
Last Updated: July 22, 2022
What Information is Collected. We will have access to the information you voluntarily provide to us. Such information may include, but may not be limited to, your name, contact details and your profile picture; cookie, device information (including any personal information contained on the device) and similar advertising identifiers; IP Address; demographic information (such as age range, gender, other customer-specified demographics); geolocation; pseudonymous data transferred in connection with the data in the bullets above; an individual’s business or vocation status, including job role, job description, job title, employment status; and Personal Data that is provided by an individual in connection with permitted purposes of processing (e.g., Personal Data included in email signature blocks, birthdays or other personal information discussed as part of ordinary course, business-to-business relationships, etc.).
We also collect other information related to your devices, such as your device’s IP address, information on your use of our products and services, your internet service provider, the type operating system you use, and the URL’s of websites you visited linking to us or from us. We also collect information on any custom tags you use and searches you perform.
All information collected may be anonymized and aggregated to enhance the research and search functions of our services, to improve the quality and usability of our services.
We do not knowingly collect personal information from children under the age of thirteen.
Use of Information Collected. We will only use your personal information for the purposes for which it was collected, unless we reasonably consider that we need to use it for another reason that is compatible with the original purpose. If we need to use your personal information for an unrelated purpose, we will notify you and explain the legal basis which allows us to do so. We may use the information we collect from you for the following:
- to facilitate EPAM’s product and services and any applicable SOW, and storage of any personal information contained within mobile devices and the Product (if such storage is requested by End User).
- to personalize the content and services provided to you.
- to inform you of any maintenance or upgrades we may perform.
- to inform you of any new products and services, versions, services, features or promotions.
- to inform you of the best way to optimize your use of our services and website.
- to optimize the functionality of our services and website.
- to improve our understanding of customers’ needs.
Sharing of Information. We may disclose your personal information to the following categories of recipients:
- to EPAM’s group companies, professional advisers, third party services providers and partners who provide data processing services to EPAM (for example, to support the delivery of, provide functionality on, or help to enhance the security of EPAM websites), or who otherwise process personal information for purposes that are described in Privacy Notices or notified to you when EPAM collects your personal information. A list of EPAM’s current group companies is available upon request.
- to any competent law enforcement body, regulatory, government agency, court or other third party where EPAM believes disclosure is necessary (a) as a matter of applicable law or regulation, (b) to exercise, establish or defend its legal rights, or (c) to protect your vital interests or those of any other person.
- to any other person with your consent to the disclosure.
Third Party Websites. We are not responsible for the use or misuse of any information that you may provide to third party websites to which we may provide a link. We do not control such third party websites, including the methods by which they collect information or how they use such collected information. You should independently review the privacy policies of such third party websites.
Protection. We use various administrative, technical, procedural and physical measures to protect the information we collect against theft, unauthorized use, disclosure or modification, such as storing it on secure servers that only select EPAM personnel have access to, and by encrypting it to help prevent access by any unauthorized parties. We have put in place procedures to deal with any personal information breach and will notify you and any applicable regulator of a breach when legally required to do so. To better protect this information you should not share your login or account information with anyone other than authorized persons.
All companies and individuals we employ or may employ to perform various functions on our behalf are required to protect the information in a manner that is consistent with this Policy.
Please be aware that any information you post to a blog or any other forum provided by our website or through our products and services, will be available to all persons accessing these blogs or forums, and as such may be collected or used by others for any purpose. We are not responsible for any information you elect to submit in such blogs or forums, or for the way any such information may be used or misused by third parties.
Sharing Information. We will not share your personal information with (or sell it to) anyone except (a) our service providers or subcontractors with whom we deal in connection with providing, modifying, operating or updating the products and services, and in such cases, only for those purposes, (b) to comply with the law or in response to a subpoena, court order, government request, law enforcement request or other legal process, (c) to protect our interests, rights, safety, or property, (d) to protect the interests, rights, safety, or property of our contributors, affiliates, partners, or licensors, and (e) to enforce our End User Terms, our contractual rights, or this Policy.
Other Countries. Your information may be stored and processed in the United States or any other country where EPAM has facilities, and by subscribing to and/or using our products and services, you consent to the transfer of information outside of your country (to the extent that any such information is generated in your country). Please note that other countries may have higher or lower standards for the protection of personally information, but we will always endeavor to protect such information and take reasonable steps to do so in accordance with this policy and applicable laws, including, (where applicable) utilizing the European Commission’s Standard Contractual Clauses for transfers of personal information between its group companies, which requires all group companies to protect personal information being processed from the European Economic Area to an equivalent standard to that required under European Union data protection law. In countries where it may be required, you will be permitted to correct any inaccurate personally information, opt out of provision of such information to third parties, and/or delete such information, subject to our right to limit or no longer provide the products and services to you if you delete information necessary for us to provide them.
Your Data Protection Rights. If your personal information is protected by EU data protection law, you have the following data protection rights which you may be able to exercise by contacting EPAM using the contact details provided under the “Contact Details” heading below and in the right-hand side column:
- If you wish to access, correct, update or request deletion of your personal information, you can do so at any time by contacting EPAM.
- In addition, you can object to processing of your personal information, ask EPAM to restrict processing of your personal information or request portability of your personal information by contacting EPAM.
- You have the right to opt-out of marketing communications that EPAM sends you at any time. You can exercise this right by clicking on the “unsubscribe” or “opt-out” link in the marketing emails EPAM sends you or by using the relevant opt-out mechanism for non-email based marketing.
- Similarly, if EPAM has collected and processes your personal information based on your consent, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing EPAM conducted prior to your withdrawal, nor will it affect processing of your personal information conducted in reliance on lawful processing grounds other than consent.
- You have the right to complain to a data protection authority about EPAM’s collection and use of your personal information. For more information, please contact your local data protection authority.
You will not have to pay a fee to access your personal information (or to exercise any of the other rights). However, EPAM may charge a reasonable fee or refuse to comply with your request if your request is clearly unfounded, repetitive or excessive. EPAM tries to respond to all legitimate requests within one month. Occasionally, it may take longer if your request is particularly complex or you have made a number of requests. In this case, EPAM will notify you and keep you updated.
Amendment of Modification of Policy. We reserve the right to change, amend or modify the terms of this Policy, with or without prior notice. We will make reasonable efforts to notify you of any change in this Policy that may require your consent under applicable data protection standards. Your continued use of our products, services and website constitutes your acceptance of those changes. All changes, amendments or modifications to the Policy will be posted here. Please return to this website at regular intervals to see whether the Policy has been changed, amended or modified.
Contact Details. It is important that the personal information we hold about you is accurate and current. Please keep us informed if your personal information changes during your relationship with us. Additionally, if you have any questions about this Policy, the practices of EPAM or your interaction with EPAM, please contact:
EPAM Systems, Inc.
41 University Drive, Suite 202
Newtown, PA 18940
Last Updated: July 22, 2022