Customer terms of use
Customer terms of use
Version v3 – January 2024
Introduction
These TestGorilla Terms of Service (hereafter the “Terms”), outline the terms regarding Your use of the Services and are an integral part of the agreement between you (“you”, “your,” or “Customer) and TestGorilla B.V. (“TestGorilla”, “us”, “we”, or “our”). You or TestGorilla may also be referred to individually as a “Party” and together as “Parties” in these Terms. An “Affiliate” means any company or other entity, whether or not a legal person, which directly or indirectly controls, is controlled by or is under joint control with that person. For the purpose of this definition, “control” means (a) any direct or indirect ownership of over 50% of the ownership, or (b) in the absence of such ownership interest, the power to direct or cause the direction of the management and set the policies of such company or entity.
These Terms are a legally binding contract between You and TestGorilla. If you do not agree with these Terms, do not register for a TestGorilla account, or purchase or use Services. By using or accessing the Services, or registering for a TestGorilla account, you agree to be bound by these Terms. If you use the Services on behalf of an entity, you agree to these Terms for that entity and represent and warrant to TestGorilla that you have the authority to bind that entity to these Terms, unless that entity has a separate paid contract in effect with TestGorilla, in which event the separate paid contract governs your use of the Services.
In these Terms, we refer collectively to these Terms, the Data Processing Agreement (attached as a separate annex to these Terms), the Service Level Agreement (“SLA”), the Security Measures and the Cookie Policy (jointly the “Documentation”) available on our website (“Website”) and applicable ordering documents (“Order Form”, as defined below) as the “Agreement.”
1. Grant of access and use
1.1. Subject to the terms and conditions of the Agreement (including our receipt of applicable fees) TestGorilla hereby grants to you, and you accept, a limited, personal, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access and use the Services solely for your own internal assessment and (direct) recruitment purposes (unless explicitly agreed in writing otherwise).
1.2. Access and use of the Platform and Services is provided to any number of individuals taking the assessments or tests as provided as part of the Services pursuant to the Agreement in accordance with the applicable subscription plan (“Candidates”).
1.3. Subject to prior written approval by TestGorilla, your Affiliates may use the Services without entering into a separate Order Form by providing such Affiliate(s) a login ID and password to access and use the Services. The Agreement shall apply to each Affiliate with access to your account, and you are directly and primarily responsible for all access to and use of the Services by your Affiliates. References in these Terms to you, shall include a reference to your Affiliates.
2. The Services
2.1. The “Services” include the TestGorilla online talent assessment platform (“Platform”) and any other products and services provided by TestGorilla that (a) have been applied for by the Customer under any applicable subscription plan (either via the Website or otherwise) that specifies pricing and other commercial terms (“Order Form”); or (b) are used by you. Our Services provided under this Agreement are not intended for personal or private individual use but designed and intended for commercial use only.
2.2. The Services provided under this Agreement shall be strictly used for internal or direct recruiting and job application procedures only. Any use of the Services by search agencies, recruiting agencies or sourcing platforms for third party screening purposes or search assignments on behalf of third parties is strictly forbidden unless Parties have explicitly agreed otherwise in the Order Form. We reserve the right to immediately terminate your access to the Services and your account upon violation by you of this prohibited use of the Services under these Terms.
2.3. TestGorilla will provide the Services in accordance with (a) the terms of the Agreement; and (b) in accordance with the applicable laws; and (c) the Information Security Measures.
2.4. We may provide the Services, or a portion thereof, to you through our Affiliates in accordance with these Terms and any applicable Order Form(s). TestGorilla shall always remain responsible for any Services or part thereof, provided by our Affiliates.
3. Your Account
3.1. In order to use our Services, it is required to create an account. To create an account, you (i) must select the applicable subscription plan based on your company size (e.g., the number of employees employed by your company including any Affiliates using the Services, if applicable); (ii) must be legally authorized to represent the company or business contracting our Services; and (iii) must review and accept these Terms on the Customer’s behalf. To create an account, you must provide your email address and create a password.
3.2. You agree to provide us with information that is accurate, complete, and current during your use of the Services. Failure to do so constitutes a breach of the Terms, which may result in termination of your account on our Service.
3.3. You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password. You agree not to disclose your password to any third party.
3.4. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. You are responsible for preventing unauthorized access to or use of the Services through your account and will notify TestGorilla immediately of any such unauthorized access or use. TestGorilla is not liable for any loss or damage arising from unauthorized use of your account.
4. User rights and responsibilities
4.1. In using the Services, you agree to use the Services only in accordance with these Terms, and applicable laws.
4.2. You will be solely responsible for all use of the Services under your account including all applications, web domains, devices, and communication channels owned or controlled by you or owned or controlled by third parties and made available by you to the Candidates which access, use, interact with, or depend on the Services (each, a “Customer Application”).
4.3. You shall not: (a) duplicate any portion of the Services, or any documentation (except for your internal use); (b) modify, translate, decompile, reverse engineer, disassemble, adapt the Services, or attempt to derive the source code of the software offered through the Services; (c) use the Services, or allow the transfer, transmission, export, or re-export of the Services or portion thereof in violation of any applicable law, regulation or rule; (d) develop any software or service that is derived from the Services and materially similar in function to or competes with the Services; (e) bypass, hack or breach any security device or protection used by the Services or access or use the Services, with or without automated means (such as scrape, crawl or spider); (f) remove, modify or obscure any identification or proprietary or restrictive rights markings or notices from the Services or any component thereto; (g) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, including the distribution or publication of information that is in violation of applicable law, contrary to public order or public morality, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code; or (h) aid or assist any third parties in doing any of the above.
4.4. You will not lease, (re)sell, (sub)license, assign, distribute, publish, transfer, or otherwise make available any Services to third parties (except Candidates), unless explicitly permitted under the Agreement.
4.5. The Services can only be used by individuals that are at least sixteen (16) years old.
4.6. If you or any of the Candidates or any other person authorized using the Services through your account violates the above restrictions or threatens to violate them, TestGorilla is entitled to intervene, without prior consultation, to terminate the violation or intervene to prevent any imminent danger, for example by disabling the account of the relevant Candidates or your access to the Services. You will be liable for any damage caused by your use of the Services through your account in violation of these restrictions. TestGorilla is at all times entitled to report criminal offenses with the relevant authorities, directly related to your violation of the restrictions, it has discovered and shall have no liability for any damage to you that may result from such reports.
5. Account suspension
5.1. We shall have the right to remove any inappropriate content from the Services, limit, suspend your access to your account and the Services with immediate effect and without prior notice in the event that, in our reasonable determination if: (a) your use or the use of Candidates of the Services is for any unlawful, unauthorized or fraudulent purpose; (b) you or Candidates are in material breach of any provision of the Agreement; (c) your use of the Services is materially adversely threatening the security, availability or integrity of the Services or our ability to provide service to other customers; (d) our provision or your use of the Services is not permitted by applicable laws or regulations; (e) the account information you have provided is incorrect or incomplete; or (f) you are in breach of your payment obligations under the Agreement.
5.2. If your account or use of the Services is suspended by us as a result from your actions or omissions pursuant to this Section 5 or Section 8 (Fees and Payment Terms), TestGorilla does not have any liability for damages or losses, or any other consequences that you may incur as a result. You will remain responsible for the Fees (as defined below) during any suspension.
6. Maintenance and Downtime, Modifications
6.1. The Services may occasionally become unavailable due to (a) the performance of scheduled or unscheduled maintenance, modifications, or upgrades; (b) hardware failures, or failures of third-party providers; (c) to mitigate or prevent the effects of any threat or attack to the Services or any other network or systems on which the Services rely; or (d) as necessary for legal or regulatory reasons. We will use reasonable efforts to communicate any scheduled service outages to you in advance.
6.2. Unless specifically stipulated in the SLA, TestGorilla is not liable for any damages, losses, or any other consequences incurred as a result of unavailability of Services or the failure to provide notice of unavailability
6.3. We have the right to occasionally modify the features and operations of the Services and will use reasonable efforts to inform you. We agree such changes to the Service will not materially diminish the overall features or functionality of the Services. Your continued use of the Services following the posting or notice of the changes will constitute your acceptance of such changes. If you do not agree to such changes, you must stop using the Services immediately. We will notify you in line with Section 15 (Amendments) if applicable legislation requires TestGorilla to provide you with specific notice of any such change.
7. Free Plan and Beta Products
7.1. We may invite you to test out new or additional products or features of our Services that are not generally available to all customers (“Beta Products”) or use our Services free of charge (“Free Plan Products”).
7.2. Beta Products and Free Plan Products may contain errors and are provided for limited evaluation only.
7.3. If you have access to Free Plan Products, we will make the Services available to you on a trial basis, free of charge, until the earlier of (a) the end of the free trial period, or (b) the start date of any purchased Service subscriptions ordered by you for such Services.
7.4. Beta Products and Free Plan Products are provided “AS IS” without warranty of any kind, whether express, implied, statutory, or otherwise. TestGorilla specifically disclaims all implied warranties of merchantability, noninfringement and fitness for a particular purpose in relation to Beta Products and Free Plan Products.
7.5. TestGorilla does not have any obligation to provide Beta Products and Free Plan Products to any customer or to our general customer base. TestGorilla is entitled to terminate or discontinue a Beta Product or Free Plan Product at any moment.
8. Fees and Payment Terms
8.1. Unless agreed otherwise in writing by the Parties in the Order Form, you shall pay TestGorilla all fees in accordance with the applicable subscription plan as published on the Website or as agreed in the Order Form (the "Fees"). The subscription plans are based on different bandwidths measured by the number of your employees of your company (including any Affiliates that will be using the Services).
8.2. Subscription plans have a standard duration of either twelve (12) months or monthly (‘lite plan’), unless explicitly agreed otherwise, and are paid in advance annually or monthly, depending on your selection in the Order Form or the Website either for annual or monthly payment.
8.3. All payment obligations are non-cancelable, and Fees and taxes, once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 8.9 (payment disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method: (a) if you elect to remit the Fees using a credit card or PayPal, you represent and warrant that you are authorized to use that credit card or PayPal account, that any and all Fees may be billed to that credit card or PayPal account, and that payment of such Fees will not be declined; or (b) if you elect to receive invoices and TestGorilla approves you for the same, invoices will be sent to you at the frequency set forth in the applicable Order Form and you will pay the Fees due within twenty (20) days of the date of the invoice.
8.4. If you have selected payment by credit card with payment in monthly installments, your credit card will be charged once a month. If your credit card cannot be charged, TestGorilla will notify you and you will need to update your payment information. In the event you do not update your payment information within twenty (20) days of TestGorilla’s notice, your access to the Service may be suspended and you will need to update your card information in order to resume use of the Services. There will be no refunds or credits for partial months of service.
8.5. You shall provide TestGorilla with accurate and complete billing information including full name, address, state, zip code, country, telephone number, and a valid VAT or applicable tax registration number and notify us of any changes to such information. By submitting the payment information, you automatically authorize TestGorilla to charge all Fees incurred through your account to any such selected payment instruments.
8.6. Your use of the Services is based on your company size which determines the applicable subscription plan listed in the Order Form unless another basis of the cost has been explicitly agreed. TestGorilla is entitled to verify at any time whether you have submitted the correct information regarding the selected subscription plan. If in TestGorilla’s reasonable opinion it appears you have submitted incorrect information of the number of employees employed by you and your company size is in excess of the selected subscription plan, TestGorilla reserves the right, without prior consultation and at its sole discretion, to disable your access to the Services or terminate your account with immediate effect, or upgrade your subscription plan in accordance with your company size. Any additional or increased Fees in connection with an upgrade in subscription plans, will be due in accordance with this Section 8 (Fees and Payment Terms) of these Terms and billed in accordance with the next payment cycle.
8.7. All Fees and other amounts payable by you under the Agreement are exclusive of taxes, duties, levies and similar assessments as well as any other costs including transaction costs or bank transfer fees. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by you hereunder, other than any corporate income taxes imposed on TestGorilla's income.
8.8. TestGorilla is entitled to invoice you if for any reason the appropriate taxing authorities determine that you are not exempt from any taxes and TestGorilla is required to pay such taxes. Any applicable penalties or interest that might be imposed will be added to such invoices. The Fees shall in no event be decreased by any taxes and/or fees of any nature owed by you in connection with your purchase of the Services.
8.9. If you fail to make any payment when due then, in addition to all other remedies that may be available: (a) TestGorilla may charge interest on the past due amount at the rate of 1.5 % per month of the value of the applicable Fees, calculated daily and compounded monthly or, if higher, the maximum rate permitted under applicable law; (b) You shall reimburse us for all costs incurred by TestGorilla in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (c) If such failure continues for more than thirty (30) days following written notice thereof, we may suspend performance of the Services until all past due amounts, and interest thereon, have been paid, without incurring any obligation or liability to you or any other person by reason of such suspension.
8.10. If you do not agree with any invoice for Fees, you must notify us in writing within ten (10) days of the date of the respective invoice, failure of which shall result in acceptance of the invoice and forfeiture of your right to dispute the invoice. All undisputed fees remain due according to schedule.
8.11. All amounts payable to TestGorilla under the Agreement shall be paid by you in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
8.12. We are entitled to increase the Fees annually after the Initial Term for any Renewal Term (as defined below) with a notice period of thirty (30) days before taking effect. If you do not agree to any change in the Fees, you are entitled to terminate the Agreement before the start of the Renewal Term. Your continued use of the Service after the modification of the Fees comes into effect constitutes your acceptance and agreement to pay the updated Fees.
9. Intellectual Property and Data
9.1. You acknowledge and agree that TestGorilla and its licensors, as applicable, own and retain all title and rights, including all intellectual property rights, in and to (a) the Platform, the Services, Beta Products, the Documentation, the software including any related software application and/or component thereof, or to any associated materials or intellectual property, or in or to any enhancements, modifications, updates, or improvements of any of the foregoing (including any feedback you may provide), and all other materials created by us or provided by us to you as part of the Services under the Agreement, and (b) all operational and performance data related to your use of the Service and Beta Products, however excluding Customer Data (as defined below), and, subject to applicable law, any de-identified or anonymized aggregated data (“TestGorilla Data”).
9.2. The Agreement does not grant to Customer any title or right of ownership in or to the Platform, the Services, or any related software application or component thereof, or to any associated materials or intellectual property, including test content and questions, test algorithms, output generated by Candidates, or psychological profiling (with the exception of Customer Data as defined below).
9.3. You are prohibited to modify, translate, decompile, reverse engineer, disassemble, adapt the Services and the associated intellectual property rights, or attempt to or abstract the source code from the software underlying the Platform, the Services, the software or the applications in any other way. You shall not remove or alter any of TestGorilla’s proprietary or copyright notices, trademarks or logos contained in the Services.
9.4. Any data that originates with a Candidate or that is directly provided by a Candidate via the use of the Platform or by a Candidate having created an account with TestGorilla, including but not limited to the output of an individual Candidate generated by the Platform, and communications with and video recordings of Candidates (“Candidate Data”) shall be the exclusive property of the Candidate. This includes any personal data provided by the Candidate via the use of the Platform or when creating an account with TestGorilla.
9.5. TestGorilla hereby grants to you, and you accept, a limited-term, personal, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access and use TestGorilla Data, including results derived from Candidate Data, solely for your own use of the Services in accordance with the Agreement.
9.6. All data or input, including personal data of your employees, that you submit, share, store or otherwise provide to TestGorilla as part of your use of the Services, (which shall include Customer developed tests uploaded by you as part of your use of the Services) as well as data and materials generated by you via your use of the Services with such data under the Agreement (which shall include your analyzing, screening, assessing, scoring, rating, asserting, evaluation or otherwise qualifying the output of an individual Candidate generated by the Platform, hiring outcomes, as well as communications directly between you and Candidate), shall remain, as between Customer and TestGorilla, the exclusive property of Customer (collectively, “Customer Data”) and you will retain ownership of your Customer Data (subject to the licenses below and any third party rights therein). Candidate Data is explicitly excluded from Customer Data.
9.7. You grant us and our Affiliates as well as any sub-processors authorized by you to provide Services under these Terms, the right to collect, use and process Customer Data only to the extent necessary to provide the Services, and in each case to enable TestGorilla to operate or improve the Services, in accordance with the Terms and the Data Processing Agreement. The terms of the Data Processing Agreement are incorporated into these Terms as an Annex. Your agreement to these Terms also constitutes your agreement to the Data Processing Agreement.
10. Representations, Warranties, and Disclaimer
10.1. Each Party shall at all times comply with all applicable laws, rules and regulations in the performance of the Agreement.
10.2. Each Party represents and warrants that it has been duly authorized to enter into the Agreement and it is entitled to perform its obligations and provide the licenses hereunder.
10.3. Customer represents and warrant to have obtained all the required permissions or consents to provide Customer Data to TestGorilla s for use and disclosure in accordance with the Agreement.
10.4. Customer represents and warrants (a) to use the Services only for lawful purposes and in a manner consistent with these Terms; (b) not to use the Services to assess candidates for any jobs which are unlawful, unsafe, offensive, discriminatory, or inappropriate; and (c) not to use the Services to solicit information from candidates that could be used to discriminate against them.
10.5. TestGorilla warrants that the Services will substantially conform in all material respects in accordance with the specifications as described on the Website and that the Services shall not contain or transmit any (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person. TestGorilla further warrants and undertakes that: (a) it has and will maintain all necessary licenses, consents, and permission necessary for the performance of its obligations under the Agreement; and (b) it will cooperate with Customer in all matters relating to the Services. You will provide prompt written notice of any non-conformity. As Customer’s sole and exclusive remedy and TestGorilla’s entire liability for any breach of our warranties, TestGorilla will at our sole discretion either v(a) use reasonable efforts to fix, provide a workaround, or otherwise correct the defect or, if TestGorilla is unable to do so, (b) refund the Fees paid to for such allegedly defective Services for the period commencing from the receipt of your default notice for the remainder of the time period during which the material failure affected the Services.
10.6. TestGorilla warrants that it has obtained the consent of each Candidate to provide the Candidate Data (including Candidate personal data) to you (including to your Affiliates in countries outside the European Economic Area, if applicable) for the purpose of your direct or internal recruitment activities. TestGorilla will request the Candidate, on behalf of you, (which request will explicitly state that the Candidates’ answer will not impact the application procedure) to consent that you may keep the Candidate personal data for a period of two (2) years after the application for which that Candidate has completed the assessment has been completed or withdrawn. In addition, the Candidate is informed that he or she may withdraw such consent at any time.
10.7. Except for the warranties expressly provided by us in Section 10.1, 10.5 and 10.6, Customer expressly acknowledges and agrees that, to the maximum extent permitted by applicable law, the Services are provided “as is” with all faults and without warranty of any kind, and TestGorilla hereby disclaims all warranties and conditions with respect to the Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, or accuracy.
11. Indemnification
11.1. We will defend, indemnify and hold Customer harmless against all damages, fines, penalties, settlement amounts pre-approved by us, costs, expenses, taxes, and other liabilities (including reasonable attorneys’ fees) incurred or awarded against you in connection with any unaffiliated third-party claim, action, demand, suit, or proceeding made or brought against you and your Affiliates, as well as their individual officers, directors, and employees that your use of the Services in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other intellectual property right of such third party ("Infringement Claim"), on written demand. We reserve the right to either (a) alter the Services to make them non-infringing, or (b) terminate the infringing Services and refund you any Fees, in the event of an Infringement Claim.
11.2. Any Infringement Claim resulting from or arising out of (a) your use of the Services in violation of the Agreement; (b) the combination of the Services with other applications (including Customer Applications), products, or services where the Services would not by themselves be infringing; or (c) Beta Products and Free Plan Products do not give rise to any liability or obligation on our part under Section 11.1.
11.3. Customer will defend, indemnify and hold TestGorilla harmless against all damages, fines, penalties, costs, expenses, taxes, and other liabilities (including reasonable attorneys’ fees) incurred or awarded against TestGorilla, our Affiliates, officers, directors and personnel in connection with any claim by an unaffiliated third party alleging or arising out of your (a) breach of your obligations under the Agreement; (b) failure to obtain any appropriate license or other permissions, regulatory certifications, or approvals associated with technology or data provided by Customer to us including Customer Data; (c) failure to comply with your obligations in violation of any applicable law, including data privacy laws; (d) infringement or misappropriation of intellectual property rights of third parties; and (e) breach of confidentiality.
11.4. The obligation to provide indemnification under the Agreement shall be contingent upon the party seeking indemnification (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) allowing the indemnifying party to control the defense and settlement of such claim, provided however that the indemnifying party agrees not to enter into any settlement or compromise of any claim or action in a manner that admits fault or imposes any restrictions or obligations on an indemnified party without that indemnified party’s prior written consent which will not be unreasonably withheld, and (iii) cooperating fully with the indemnifying party in connection with such defense and settlement.
11.5. This Section 11 (Indemnification) states the sole liability of the indemnifying Party to, and the exclusive remedy of the indemnified Party against, the other Party for any third-party claims.
12. Limitation of Liability
12.1. To the greatest extent permitted by applicable law, each Party’s total accumulated liability to the other or to any third party for any direct loss, damages, costs or expenses whether in strict liability, negligence, contract or otherwise relating to this Agreement, shall be limited to the aggregate fees paid or payable by Customer to TestGorilla during the twelve-month period prior to the occurrence of the initial event giving rise to a claim.
12.2. Neither Party shall be liable to the other for any consequential damages, including but not limited to loss, lost sales or lost profits, consequential, incidental, special, punitive and/or contingent damages whatsoever, (whether in contract, tort (including negligence), strict liability, warranty or otherwise), even if such party knew or should have known of the possibility of such damages.
12.3. TestGorilla shall not be liable for any damages or losses resulting from or relating to misrepresentation or fraud by any Candidate performing or conducting tests or assessments via the Platform. In addition, TestGorilla shall not be liable for Beta Products and Free Plan Products nor for damage, destruction or loss of data or documents (including Customer Data) resulting from the use of the Services.
12.4. The limitations of liability contained in this Section explicitly do not apply to: (a) Customer’s breach of Section 4 (User Rights and Responsibilities); (b) Customer’s breach of Section 8 (Fees and Payment Terms); (c) the indemnification obligations in Section 11 (Indemnification); or (d) in case of gross negligence or willful misconduct of a Party.
13. Confidentiality
13.1. In connection with this Agreement, each Party may have access to or be exposed to information of the other Party that is not generally known to the public, such as software, performance, scoring, evaluation and Customer ratings of Candidates and Customer employees, Candidate lists, product plans, pricing, marketing and sales information, “know-how,” or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential, including Customer Data (collectively, “Confidential Information”).
13.2. Confidential Information may not be shared with third parties unless such disclosure is to the receiving Party’s personnel, including employees, agents, and authorized subcontractors, on a “need-to-know” basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each Party agrees to take the necessary precautions to maintain the confidentiality of the other Party’s Confidential Information by using at least the same degree of care as such Party employs with respect to its own Confidential Information of a similar nature, but in no case less than a reasonable standard of care to maintain confidentiality.
13.3. The foregoing shall not apply to information that: (a) was known by the receiving party prior to its receipt from the disclosing party or is or becomes public knowledge through no fault of the receiving party; or (b) is rightfully received by the receiving party from a third party without a duty of confidentiality. If a receiving party is required by a court or government agency to disclose Confidential Information, the receiving party shall provide reasonable advance notice to the disclosing party before making such a disclosure to enable the disclosing party to see an appropriate protective order or other such remedy.
14. Term and termination
14.1. The Agreement, including these Terms, commence on the date when accepted or on the date as indicated in the Order Form and will continue until all Order Forms or Services used by the Customer on the Website have expired or have been terminated in accordance with these Terms.
14.2. The initial subscription term (“Initial Term”) starts to run from the moment the Services are activated through the Website or as indicated in the applicable Order Form.
14.3. Unless otherwise provided on the Website or in the applicable Order Form, your subscription will automatically renew for additional successive periods of equal duration to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless the renewal is canceled by you or TestGorilla. If you do not agree to the renewal, you are entitled to terminate the renewal of the Agreement either through the Website or by contacting the contact help center up to the last day of the Term. Your continued use of the Services constitutes your acceptance and agreement to the Renewal Term. Termination of the Agreement during the Term is not possible unless in accordance with this Section 14.
14.4. The applicable fee for any Renewal Term will be determined using the then-current list price based on the applicable subscription plan on the Website for such renewed Services unless a different renewal pricing is specified in the Order Form.
14.5. Either Party may terminate the Agreement and any Order Form (in whole or in part) by providing the other party with not less than ten (10) days' prior written notice in the event the other party materially breaches any provision of this Agreement. If the breaching Party fails to cure the material breach within ten (10) day period following the notice of default, the non-breaching Party may terminate this Agreement effective at the end of the ten (10) day period, notwithstanding any other provision in this Agreement. Regarding a material breach of Customer, TestGorilla may, in addition to termination, suspend the provision of certain Services, close your accounts, and/or prohibit Customer from creating any new accounts.
14.6. In no event will termination of the Agreement or Order Form relieve Customer of any payment obligation of the Fees payable prior to the effective date of termination.
14.7. Either Party may terminate this Agreement by written notice with immediate effect in the event the other Party becomes insolvent, or generally unable to pay its debts as they become due or makes an assignment for the benefit of its creditors or seeks relief under any bankruptcy, insolvency or liquidation proceedings.
14.8. In the event of any expiration or termination of the Agreement: (a) TestGorilla will invoice Customer for any accrued but unbilled amounts, and Customer shall promptly pay any then outstanding and unpaid amounts including any accrued but unbilled amounts owed under the Agreement; (b) Customer shall immediately cease all use of the Services and return or purge any and all components thereof, including returning or destroying or causing to be destroyed any and all copies of the Documentation, notes and other materials comprising or regarding the Services, any Candidate Data copied, stored or otherwise transferred to Customers’ systems as well as any TestGorilla Data and Confidential Information; (c) TestGorilla will suspend access to the Services and Customer shall no longer have access to TestGorilla’s platform including its historical assessments; and (d) TestGorilla delete to Customer all Customer Data, all Customer Confidential Information and any other material, equipment or information that is proprietary to Customer within sixty (60) days after the effective date of expiration or termination, unless it is required to store such data longer as required by applicable law or as required to prosecute or defend a legal claim, in which case such information will only be retained for as long as required to resolve the claim.
14.9. The following sections and paragraphs shall survive the expiration or termination of the Agreement under this Section 14 (Term and Termination): Section 8 (Fees and Payment Terms), Section 9 (Intellectual Property and Data), Section 13 (Confidentiality); Section 10.7 (Disclaimer), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 16 (Miscellaneous) as well as the Data Processing Agreement.
15. Amendments
15.1. TestGorilla is entitled to amend these Terms from time to time. We will use reasonable efforts to notify you of any material changes by posting an announcement on the Website or by email. To the greatest extent permitted by applicable law, the new Terms will take immediate effect, and your continued use of the Services following our posting or notice of the changes will constitute your acceptance of the updated Terms.
15.2. If we are required by applicable law to give additional notice, changes will automatically take effect regarding your use of the relevant Services upon expiry of such notice period (unless you terminate during that period) or upon your earlier acceptance of such changes. If you have a right under applicable law to terminate this Agreement upon receipt of such notice, you will not be charged a fee for early termination where you exercise that right under applicable law, but any fees previously paid by you are non-refundable and any fees owing continue to remain due and payable.
16. Miscellaneous
16.1. Compliance with Law Assurances. Both Parties warrant to comply with all applicable anti-corruption, anti-money laundering, sanctions, export controls, and other international trade laws, regulations, and governmental orders of the European Union, the United Kingdom, the United States of America, the United Nations, or any other relevant governmental authority, including obtaining all necessary licenses and/or government approvals. Parties will promptly notify each other in writing of any actual or potential violation of such applicable laws and regulations in connection with the use of the Services and Parties shall take all appropriate actions to remedy or resolve such violations, including any actions requested by the other Party.
16.2. No Class Actions. To the greatest extent permitted by applicable law, neither Customer nor TestGorilla shall be entitled to join or consolidate claims by or against other customers or pursue any claim as a representative of a class action or in a private attorney general capacity.
16.3. US Government Terms. The Services, including any related software and technology, are provided solely in accordance with these Terms for United States government end use. If you (or any users of your Customer Application) are an agency, department, or other entity of the United States government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation, is restricted by these Terms. All other use is prohibited and no other rights other than those provided in these Terms are conferred.
16.4. Independent Contractors. The Parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between TestGorilla and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither Party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in the Agreement.
16.5. Force Majeure. Neither Party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under the Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, epidemic or pandemic, or the intervention of any governmental authority (a “Force Majeure”). In such an event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. The delayed Party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than ninety (90) days, then the other Party may immediately terminate, without any liability, in whole or in part, the Agreement by giving written notice to the delayed Party.
16.6. Transferability and subcontracting. Neither all nor any part of Customer’s rights or obligations under this Agreement are assignable or transferable by Customer, whether directly or indirectly, without the prior written consent of TestGorilla, and any attempt to do so shall be void, except in case of merger, acquisition or sale of majority of assets. TestGorilla has the right to freely assign all or part of its rights and obligations under the Agreement or to make use of the services of third parties by subcontracting. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
16.7. Entire Agreement. The Agreement constitutes the entire agreement between you and us with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements. General terms and conditions of Customer are not applicable and expressly excluded.
16.8. Severability. If any provision of the Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of the Agreement will remain in full force and will not be terminated.
16.9. Notices. Any notice, request, demand, or other communication to be provided under this Agreement shall be in writing and shall be sent by the email addresses provided by each Party, or at such other address as a Party may designate by written notice to the other Party.
16.10. Headings. The section headings in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of the Agreement.
16.11. Publicity. You grant us the right to use your name, logo, and a description of your use case to refer to you on our website, customer lists, or marketing or promotional materials, subject to your standard trademark usage guidelines expressly provided to us.
16.12. Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each Party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
17. Governing law
17.1. The Agreement including these Terms shall be governed by the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.
17.2. The Parties agree that any dispute arising out or relating to the Agreement shall be brought exclusively in the courts in Amsterdam, the Netherlands.