THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO THE PRODUCTS AND SERVICES (THE “SERVICES”) PROVIDED TO YOU BY THE APPLICABLE SAUCE LABS CONTRACTING ENTITY SPECIFIED IN SECTION 12.4 BELOW (“SAUCE LABS”). PROCUREMENT OF, USE OF, OR ACCESS TO SUCH PRODUCTS OR SERVICES IS SUBJECT TO YOUR, AND THE ENTITY YOU REPRESENT (TOGETHER, “CUSTOMER”)’S, COMPLIANCE WITH THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, PURCHASING OUR SERVICES FROM A THIRD PARTY AUTHORISED TO RESELL SAUCE LABS’ PRODUCTS OR SERVICES (“AUTHORIZED PARTNER”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
THE SERVICES ARE INTENDED FOR BUSINESS, COMMERCIAL, OR ORGANIZATIONAL USE AND ARE NOT INTENDED FOR USE BY CONSUMERS.
IF CUSTOMER SUBSCRIBES TO CERTAIN SERVICES FOR AN INITIAL SUBSCRIPTION TERM (AS DEFINED BELOW) FROM SAUCE LABS, THEN THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL SUBSCRIPTION TERM AT SAUCE LABS’ THEN-CURRENT FEE FOR SUCH SERVICES UNLESS CUSTOMER OPTS OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 5.1 BELOW.
1. SERVICES - GENERAL
1.1 Provision of Services. Sauce Labs will provide Customer with the services (“Services”) either: (a) selected by Customer via Sauce Labs’ online purchase process; or (b) set forth in a quote, purchase order or statement of work executed by the Customer with Sauce Labs or an Authorized Partner ((a) and (b) together are each an “Order Form”). The Services are provided on a subscription basis for the term set forth on the applicable Order Form (“Subscription Term”). The Services are for Customer’s own internal business, commercial or organizational use in accordance with the terms and conditions of this Agreement, the Sauce Labs Acceptable Use Policy (set forth at https://saucelabs.com/acceptable-use-policy) the online Sauce Labs documentation associated with the Services (currently located at docs.saucelabs.com)(“Documentation”), and any Service-specific terms or limitations set forth or referenced on the applicable Order Form (collectively, the “Permitted Use”). Customer shall make no use of the Services beyond the Permitted Use.
1.2. Limited Application of Certain Terms. Section 2 governs the use of Services provided on a remote, software-as-a-service basis (“SaaS Services”). Section 3 governs the use of Services that involve the delivery of Software (as defined below) for use on the Customer’s premises or virtual private cloud (as applicable) (“On-Premises Services”).
1.3 Service-Specific Terms. The additional Service-specific terms, located here (the “Service-Specific Terms”), will apply to Customer’s use of the specific Sauce Services set forth on Customer’s Order Form.
1.4 Permitted Users. Customer is responsible for determining those persons permitted to access and use the Services and Customer’s Services accounts, which may include Customer’s and its Affiliates’ employees, agents and consultants (“Permitted Users”). Customer may permit its Permitted Users to access and use the features and functions of the Services in accordance with the terms of this Agreement. If applicable, the number of Permitted Users may be limited as specified in the applicable Order Form.
1.5 Professional Services; Training. To the extent set forth in an Order Form, Sauce Labs will also provide training and professional services in support of the implementation and use of the Services. The foregoing will be provided in a professional manner and in accordance with any additional terms and conditions set forth in the relevant Order Form or as otherwise agreed to by the parties in writing.
1.6 Beta Services; Free Trials. From time to time, Sauce Labs may, but is not obligated to, offer Customer certain products, services or features that are made available on a trial, evaluation, beta, early access or similar basis (“Beta Services”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) use of any Beta Services shall be at Customer’s sole discretion; (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality of the Beta Services; (c) Beta Services may not be available or reliable; (d) Beta Services may not be subject to the same security or audits as the Services; and (e) Sauce Labs provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services. In addition, from time to time, Sauce Labs may, but is not obligated to, offer access to the Services free of charge for a limited period of time (“Free Trials”). Free Trials are provided “as-is” without warranty of any kind. Sauce Labs will have no liability arising out of or in connection with a Free Trial. If Customer is a consumer for the purposes of applicable law and has its habitual residence in the United Kingdom or the European Economic Area, the foregoing is without prejudice to mandatory consumer rights and statutory warranties.
1.7 Open Source Software. Certain items of software may be provided to Customer with the Services that are subject to “open source” or “free software” licenses (“Open Source Software”). Each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
1.9 Data Security. During the Subscription Term, Sauce Labs shall implement and maintain an information security program that incorporates administrative, technical and physical safeguards designed to: (a) ensure the security and integrity of the Customer Data and Account Information; (b) prevent unauthorized access to, or disclosure of, the Customer Data and Account Information; and (c) protect against threats, hazards and security incidents with respect to the Customer Data and Account Information, in each case, solely to the extent that Sauce Labs hosts such Customer Data or Account Information.
1.10 Sauce Labs Community. Should you elect to participate in the Sauce Labs Community, you will be subject to the terms of service associated with such Community.
2. SaaS Services
2.1 Access to SaaS Services. Where Customer has acquired SaaS Services on an Order Form, subject to the terms and conditions of this Agreement, Sauce Labs grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 12.2), revocable right and license during the Subscription Term: (a) to access and use the SaaS Services for the Permitted Use; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support the Permitted Use.
2.2 Permitted User Access. If Customer is given passwords, or the ability to create passwords, to access SaaS Services on Sauce Labs’ systems, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will ensure its Permitted Users comply with this Agreement and is responsible for any and all actions taken using Customer’s accounts and passwords or in Customer’s own trusted environment. Customer shall notify Sauce Labs as soon as reasonably practicable of any unauthorized use of any User ID, password or account or any other known or suspected breach of security.
2.3 General Restrictions. Customer will not, and will not allow any Permitted User or third party to: (a) modify, adapt, alter, translate or create derivative works of the SaaS Services; (b) rent, lease, loan, copy, provide access to or sublicense any SaaS Services to a third party; (c) use any SaaS Services to provide, or incorporate any SaaS Services into, any product or service provided to a third party, such as in a service bureau or time-sharing arrangement; (d) upload any data to the SaaS Services in breach of Section 2.4; (e) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the SaaS Services (notwithstanding the foregoing, decompiling software is permitted solely to the extent the laws of Customer’s jurisdiction give Customer the right to do so for obtaining information necessary to render the software interoperable with other software; provided, however, that Customer must first request such information from Sauce Labs and Sauce Labs may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the software); (f) remove or obscure any proprietary or other notices contained in any SaaS Services (including in any reports or data printed from the SaaS Services); (g) send or store in or via the SaaS Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;(h) send or store in or via the SaaS Services or include within the Customer Data (as defined in Section 2.4) any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (i) interfere with or disrupt the SaaS Services or the hardware or network used to operate the SaaS Services or access the SaaS Services through an unapproved interface; or (j) otherwise use the SaaS Services in any manner that exceeds the grant of rights permitted under Section 2.1 or in a manner inconsistent with applicable law. For clarity, the foregoing restrictions will also apply to the Documentation provided by Sauce Labs to Customer.
2.4 Customer Data Obligations. “Customer Data” means, other than Account Information (as defined below), all information, data, and other content, in any form or media, that is submitted or otherwise transmitted by or on behalf of Customer via the Services, as well as the test logs, screen shots, videos and analytics reports generated for Customer in the course of Customer’s use of the Services, as may be further described in the Service-Specific Terms. Customer Data does not include “Account Information” (as defined in Section 1.8) or Usage Data (as defined in Section 4.3) and, unless specifically authorized in the Service-Specific Terms, should not include any personal data, production, or other sensitive data. Unless specifically authorized in the Service-Specific Terms, Customer may only upload non-sensitive, non-production data (for example, synthetic or “dummy” test data) in connection with Customer’s use of the Sauce Services without the inclusion of any proprietary source code or personal data regarding end users of Customer’s applications. The Service-Specific Terms may include additional Customer obligations and restrictions with respect to the Customer Data to be provided by Customer with respect to a particular Sauce Service. Customer is responsible for reviewing and complying with those Service-Specific Terms. In the event of any discrepancy between such Service-Specific Terms and this Agreement, the Service-Specific Terms shall control. EXCEPT AS OTHERWISE SET FORTH HEREIN, SAUCE LABS WILL HAVE NO RESPONSIBILITY OR LIABILITY RELATED TO OR RESULTING FROM CUSTOMER’S FAILURE TO COMPLY WITH THE FOREGOING. Customer will ensure that Customer’s use of the SaaS Services and all Customer Data is at all times compliant with Customer’s security and privacy policies 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. Customer is solely responsible for the accuracy and content of all Customer Data provided by Customer. Customer represents and warrants to Sauce Labs that Customer has sufficient rights in the Customer Data to grant the rights provided in Section 4.3 and that Customer Data does not infringe, misappropriate or otherwise violate the rights of any third party. If Customer exports information from a jurisdiction outside the United States, Customer will ensure that it has all legal rights to do so (including, without limitation, in compliance with applicable privacy laws and regulations).
2.5 Uploads of Customer Data. When the Documentation requires Customer to upload Customer Data to Sauce Labs, such Customer Data shall be provided in a format consistent with the technical compatibility requirements set forth in the Documentation (or as otherwise specified by Sauce Labs) (“Technical Requirements”). Errors in loading Customer Data onto Sauce Labs systems due to defective media, erroneous data, or failure to meet Technical Requirements may be rejected by the Services or may be referred back to Customer for resolution and Sauce Labs shall have no responsibility for any related impact on Customer’s use of the applicable SaaS Service.
2.6 Support. During the Subscription Term, Sauce Labs will provide Customer with support for the Services in accordance with the Support Policy (to the extent applicable to Services purchased by Customer on an Order Form).
3. ON-PREMISES SERVICES
3.1 License to Software Where Customer has acquired On-Premises Services on an Order Form, subject to the terms and conditions of this Agreement, Sauce Labs grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 12.2), revocable license during the Subscription Term to: (a) download, install and use the Software for the Permitted Use; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support the Permitted Use. For the purposes of this Agreement, “Software” means a software program that is identified in an Order Form, in executable object code form only (unless expressly specified otherwise) and licensed by Sauce Labs to Customer in accordance with the terms herein.
3.2 Delivery; Acceptance; Installation. Promptly following the execution of this Agreement and the applicable Order Form, Sauce Labs shall deliver the Software to Customer electronically, which shall be deemed accepted upon delivery. Unless specified otherwise on the applicable Order Form, Customer is responsible for installing the Software on its servers as permitted under this Agreement.
3.3 License Restrictions. Customer acknowledges that the Software and its structure, organization and source code constitute valuable trade secrets of Sauce Labs. Customer will not, and will not allow any Permitted User, Affiliate or third party to: (a) modify, adapt, alter, translate or create derivative works of the Software; (b) merge the Software with any other software; (c) rent, lease, loan, copy, provide access to or sublicense any Software to any third party; (d) use any On-Premises Services to provide or incorporate any On-Premises Services into any product or service provided to a third party, such as in a service bureau or time-sharing arrangement; (e) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Software (notwithstanding the foregoing, decompiling Software is permitted solely to the extent the laws of Customer’s jurisdiction give Customer the right to do so for obtaining information necessary to render the Software interoperable with other software; provided, however, that Customer must first request such information from Sauce Labs and Sauce Labs may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the Software); (f) remove or obscure any proprietary or other notices contained in any On-Premises Services; or (g) otherwise use or copy the Software except as expressly allowed under Section 3.1. For clarity, all of the foregoing restrictions will also apply to the Documentation provided by Sauce Labs to Customer.
4. PROPRIETARY RIGHTS.
4.1 Sauce Technology. Customer acknowledges that no Intellectual Property Rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to the Services, irrespective of any use of the words “purchase”, “sale” or like terms hereunder. Customer agrees that Sauce Labs, its licensors, and its suppliers retain all right, title, and interest (including all Intellectual Property Rights) in and to the Sauce Labs Technology (as defined below) or any work product produced by Sauce Labs or its suppliers hereunder. For the purposes of this Agreement: (a) “Intellectual Property Rights” means all of the following in any jurisdiction throughout the world and all rights therein: (i) patents and applications therefor and all other rights corresponding thereto; (ii) trade-secret rights and all other rights in confidential business or technical information; (iii) copyrights, copyrights registrations and applications therefor, moral rights, and all other rights corresponding thereto; (iv) domain names, uniform resource locators, other names and locators associated with the Internet, and applications or registrations therefor; (v) trade names, logos, common law trademarks and service marks and trademark and service mark registrations, all related goodwill related thereto, and applications therefor; (vi) all rights in databases and data collections; and (vii) any similar or equivalent rights recognized in any jurisdiction in the world to any of the foregoing; and (b) “Sauce Labs Technology” means the Services (including the Software), Documentation, and any and all related and underlying technology and work product developed by, or on behalf of, Sauce Labs and its licensors and suppliers.
4.2 Feedback. In the event Customer provides Sauce Labs with any suggestions, ideas, improvements or other feedback with respect to any aspect of any of the foregoing (“Feedback”), Customer shall and hereby does grant Sauce Labs (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sublicensable (through multiple tiers), transferable, royalty-free, fully paid-up, worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose.
4.3 Data Rights. As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data. In connection with providing the Services, Customer acknowledges that Sauce Labs may (to the extent permitted by applicable law) create or collect certain aggregated and anonymized technical and analytical information pertaining to Customer’s use of the Services or information pertaining to the performance of the Services in Customer’s environment (“Usage Data”) and may use such Usage Data for the purposes listed in (i) – (iii) below. Customer grants Sauce Labs a limited, non-exclusive, worldwide, royalty-free license: (a) during the Subscription Term, to download, store, process and use the Customer Data as necessary for purposes of providing and improving the SaaS Services; and (b) on a perpetual and irrevocable basis, to use the Customer Data in an aggregated and anonymized form only, together with the Usage Data, to: (i) improve the Services (including through various machine learning exercises); (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services.
5. SUBSCRIPTION TERM, FEES & PAYMENT.
5.1 Subscription Term and Automatic Renewal. Unless otherwise terminated as set forth below, each Order Form will have the initial Subscription Term set forth thereon. If no initial Subscription Term is set forth in an Order Form, the initial Subscription Term for such Order Form will be one (1) year. After the conclusion of the initial Subscription Term, unless specified otherwise on the Order Form, each Order Form will automatically renew for successive renewal terms of equal length to the initial Subscription Term, at Sauce Labs’ then-current fees for such Service, unless Customer provides Sauce Labs with at least thirty (30) days' notice of non-renewal. By subscribing to the Services, Customer authorizes Sauce Labs to charge Customer the fees for the initial Subscription Term, and again at the beginning of any subsequent Subscription Term. Customer may cancel via the account administration tools provided within the Services. If Customer cancels its subscription, Customer may continue to use the Services until the end of Customer’s then-current Subscription Term and Customer’s subscription will not be renewed after Customer’s then-current Subscription Term expires. However, Customer will not be eligible for a prorated refund of any portion of the fees paid for the then-current Subscription Term.
5.2 Fees and Payment. Unless otherwise specified in an Order Form, all fees are payable by Customer at the time of purchase (or on the date of renewal of the Subscription Term, as applicable). Use of the Services beyond agreed-to limits may subject Customer to overage fees at the rate set forth in the Order Form at the time of purchase. Except as expressly set forth in Sections 7.1 and 9.2, all fees are non-refundable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. Except as otherwise set forth on an Order Form, all fees must be paid in US dollars.
5.4 Adjustment of Fees. Sauce Labs may adjust the fees charged to Customer hereunder on notice (electronic notice is sufficient) delivered to Customer at least sixty (60) days prior to the end of the then-current Subscription Term (and such fees will take effect beginning on the next Subscription Term).
5.5 Taxes. Unless taxes are expressly included, the payments required under this Agreement are exclusive of any sales, use or value added tax and any other equivalent tax (“Sales Tax”) that may be due in connection with the services provided under this Agreement. If Sauce Labs determines it has a legal obligation to collect a Sales Tax from Customer in connection with this Agreement, Sauce Labs shall collect such Sales Tax in addition to the payments required under this Agreement. If payments for any Services under the Agreement are subject to any Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to Sauce Labs, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify Sauce Labs for any liability or expense Sauce Labs may incur in connection with such Sales Taxes. Customer agrees to make all payments of fees to Sauce Labs free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Sauce Labs will be Customer’s sole responsibility, and Customer will provide Sauce Labs with official receipts issued by the appropriate taxing authority, or such other evidence as Sauce Labs may reasonably request, to establish that such taxes have been paid.
5.6 Suspension of Service. If Customer's account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Sauce Labs reserves the right to, with or without notice, suspend Customer’s access to the applicable Services without liability to Customer until such amounts are paid in full.
5.7 Free Trials. Any Free Trial that provides access to the Services must be used within the specified time of the Free Trial. At the end of the Free Trial period, Customer’s use of that Service will expire, and any further use of the applicable Service is prohibited unless Customer pays the then-applicable subscription fee. Customer may be required to enter payment information to sign up for a Free Trial but will not be charged by Sauce Labs until the Free Trial has expired.
6.1 Termination. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment or in the event Customer breaches any license or use restrictions) (provided that, in the event of Customer’s notice of breach with respect to the Services, such notice must: (i) be sufficiently detailed for Sauce Labs to verify and remedy the issue; and (ii) expressly state the intent to terminate); (b) ceases operation without a successor; or (c) insofar as permitted under applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and such proceeding is not dismissed within sixty (60) days thereafter). With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer is sufficient hereunder. Termination of this Agreement will automatically terminate all Order Forms. This provision is without prejudice to any additional rights of termination afforded to either party pursuant to applicable law.
6.2 Effect of Termination. Upon any expiration or termination of this Agreement: (a) all licenses will immediately terminate and Customer shall immediately cease any and all use of and access to the Services (including any and all related Sauce Labs Technology) and, if applicable, erase all copies of Software from Customer’s systems; (b) any unpaid amounts owing to Sauce Labs will become immediately due and payable; and (c) each party will return to the other party or, at the disclosing party’s election, destroy such other party’s Confidential Information (subject to Section 6.3). Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.3Data Storage and Wind Down. Sauce Labs does not provide a data/content archiving service. Sauce Labs agrees only that it shall not intentionally delete any Customer Data which is less than thirty (30) days old. During the thirty (30) days period immediately following termination of this Agreement, Sauce Labs will provide Customer with access to the Customer Data for download (and reasonable assistance in effectuating such download). Customer Data not retrieved within thirty (30) days may be deleted by Sauce Labs in its discretion. Any additional transition assistance activities will be at Sauce Labs’ discretion and may be subject to its then-current rates.
6.4 Survival. The following Sections shall survive any expiration or termination of this Agreement: Section 1.8 (Account Information), Section 2.3 (General Restrictions), Section 3.3 (License Restrictions), Section 4 (Proprietary Rights), Section 5.2 (Fees and Payment), Section 5.5 (Taxes), Section 5.8 (Audit), Section 6.2 (Effect of Termination), Section 6.3 (Data Storage and Wind Down), Section 6.4 (Survival), Section 7.2 (Warranty Disclaimer), Section 8 (Limitation of Liability), 9 (Indemnification), Section 10 (Confidential Information) and 12 (General Terms).
7. LIMITED WARRANTY.
7.1 Limited Warranty. The Services are sold for business, commercial or organizational use only and are not intended for use by consumers. Accordingly, except as otherwise set forth in this Agreement, Sauce Labs disclaims all implied warranties, including consumer warranties, under all applicable law. Sauce Labs warrants, for Customer’s benefit only, that it will use commercially reasonable efforts to ensure that the Services will operate in conformity in all material respects with the applicable Documentation. Sauce Labs does not warrant that Customer’s use of the Services will be uninterrupted or error-free, nor does Sauce Labs warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Sauce Labs’ sole liability, and Customer’s sole and exclusive remedy, for any breach of this limited warranty shall be, in Sauce Labs’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or workaround that corrects or otherwise remedies the reported non-conformity, or if Sauce Labs determines such remedy to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any prepaid but unused fees, as calculated on a pro rata basis. The limited warranty set forth in this Section 7.1 shall not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; or (b) if the error was caused by misuse, unauthorized modifications by Customer (or any third acting on its behalf), or third-party hardware, software or services not provided by Sauce Labs; or (c) Services provided on a no-charge or evaluation basis, including the Beta Services.
7.2 Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT (INCLUDING PURSUANT TO THE LIMITED WARRANTY IN SECTION 7.1), AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”. NEITHER SAUCE LABS NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. SAUCE LABS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SAUCE LABS. CUSTOMER AGREES THAT IT HAS NOT RELIED ON THE AVAILABILITY OF ANY FUTURE FUNCTIONALITY OF THE SERVICES OR ANY OTHER FUTURE PRODUCT OR SERVICE IN EXECUTING THIS AGREEMENT OR ANY ORDER FORM. CUSTOMER ACKNOWLEDGES THAT INFORMATION PROVIDED BY SAUCE LABS REGARDING FUTURE FUNCTIONALITY SHOULD NOT BE RELIED ON TO MAKE A PURCHASE DECISION. IF CUSTOMER IS A CONSUMER FOR THE PURPOSES OF APPLICABLE LAW AND HAS ITS HABITUAL RESIDENCE IN THE UNITED KINGDOM OR THE EUROPEAN ECONOMIC AREA, THIS PROVISION IS WITHOUT PREJUDICE TO MANDATORY CONSUMER RIGHTS AND STATUTORY WARRANTIES.
8. LIMITATION ON LIABILITY.
8. 1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE SET FORTH HEREIN: (A) NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF SUCH PARTY IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; (B) THE AGGREGATE LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (I) THE FEES PAID BY CUSTOMER TO SAUCE LABS DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, OR THE CUSTOMER HAS ACQUIRED BETA SERVICES OR SERVICES ON A FREE TRIAL, SUCH AMOUNT SHALL BE US$1,000.00); AND (II) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; AND (C) SAUCE LABS SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR ANY LOSS OF CUSTOMER DATA. IN ADDITION, SAUCE LABS SHALL HAVE NO LIABILITY FOR MATTERS OUTSIDE OF ITS REASONABLE CONTROL (SUCH AS ISP OUTAGES). SAUCE LABS DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR: (X) DEATH OR PERSONAL INJURY CAUSED BY SAUCE LABS’ NEGLIGENCE; (Y) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (Z) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
8.2 THIS SECTION 8.1 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 10, CUSTOMER’S BREACH OF ANY SERVICE-SPECIFIC TERMS OR INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICES.
8.3 IF CUSTOMER IS A CONSUMER UNDER APPLICABLE LAW AND HAS ITS HABITUAL RESIDENCE IN THE UNITED KINGDOM OR THE EUROPEAN ECONOMIC AREA, APPLICABLE CONSUMER LAWS MAY NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 8, AND SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
8.4 The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1 By Customer. Except as otherwise provided herein, Customer shall indemnify, defend and hold harmless Sauce Labs from and against all third party and governmental actions, claims and all resulting, to the extent payable out-of-pocket to unaffiliated third parties: damages, liabilities, fines, penalties, costs and expenses, including all reasonable attorneys’ fees) (“Losses”) arising out of or relating to: (a) any Customer Data (including, without limitation, the violation of any laws, regulations or privacy rights); (b) Customer’s breach of those specific obligations related to Customer Data as may be set forth in the Service Specific Terms; (c) any action taken (or not taken) by Customer based upon use of any of the Services or results thereof; or (d) any service or product offered by Customer in connection with, or related to, any of the Services.
9.2 By Sauce Labs. Sauce Labs shall indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, copyright, or trademark asserted against Customer by a third party based upon Customer’s use of the Services in accordance with the terms of this Agreement; provided that, Sauce Labs receives from Customer: (i) prompt written notice of such third party claim (but in any event, notice in sufficient time for Sauce Labs to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) reasonable cooperation of Customer. If Customer’s use of any Services is, or in Sauce Labs’ opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Sauce Labs may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Services; or (c) terminate the Agreement and refund to Customer the fees it pre-paid for use of the applicable Services for the unexpired remainder of the then-current Subscription Term. The foregoing indemnification obligation of Sauce Labs shall not apply: (1) if any of the Services are modified by any party other than Sauce Labs, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other non-Sauce Labs services or processes not authorized by Sauce Labs, but solely to the extent the alleged infringement is caused by such combination; (3) to any Services that are being misused; or (4) any claim arising as a result of Customer Data or any third-party deliverables or components contained within the Services. EXCEPT AS OTHERWISE SET FORTH HEREIN, THIS SECTION 9.2 SETS FORTH SAUCE LABS’ SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. THIS SECTION 9.2 WILL NOT APPLY TO ANY BETA SERVICES OR SERVICES PROVIDED FREE OF CHARGE.
10. CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Sauce Labs Technology and any Order Form will be deemed Confidential Information of Sauce Labs without any marking or further designation. In addition, to the extent Customer has negotiated pricing with Sauce Labs, such pricing is Sauce Labs’ Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence (using reasonable methods or protection) and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can reasonably evidence: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become generally available to the public through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
11. PURCHASES THROUGH RESELLERS. For Customers Who Purchase Services Through a Sauce Labs Authorized Partner:
11.1 If Customer has acquired Services through an Authorized Partner, then Section 5.1 through to Section 5.8 inclusive shall not apply to Customer, and the equivalent terms will be governed under Customer’s agreement with the Authorized Partner.
11.2 Instead of paying Sauce Labs, Customer will pay the applicable amounts to Authorized Partner, as agreed between Customer and Authorized Partner. We may suspend or terminate your rights to use Services if we do not receive the corresponding payment from the Authorized Partner.
11.3 Customer’s order details (e.g., the Services Customer is entitled to use, the capacity of Services being purchased, the term associated with those Services, etc.) will be as stated in the Order Form placed with Sauce Labs by the Authorized Partner on Customer’s behalf, and Authorized Partner is responsible for the accuracy of any such Order Form as communicated to Sauce Labs.
11.4 If Customer is entitled to a refund under this Agreement, then unless otherwise specified in the Order Form, Sauce Labs will refund any applicable fees to the Authorized Partner and the Authorized Partner will be solely responsible for refunding the appropriate amounts to Customer.
11.5 Authorized Partners are not authorized to modify this Agreement or make any promises or commitments on Sauce Labs’ behalf, and Sauce Labs is not bound by any obligations to Customer other than as set forth in this Agreement or in the Order Form.
11.6 The amount paid or payable by the Authorized Partner to Sauce Labs for Customer’s use of the applicable Services under this Agreement will be deemed the amount actually paid or payable by Customer to Sauce Labs under this Agreement for purposes of calculating the liability cap in Section 8.1.
12. GENERAL TERMS.
12.1 Electronic Communications. The communications between Customer and Sauce Labs may take place via electronic means, whether Customer sends Sauce Labs e-mails, or whether Sauce Labs posts notices within the Services or communicates with Customer via e-mail. For contractual purposes, Customer: (a) consents to receive communications from Sauce Labs in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Sauce Labs provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
12.2 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
12. 3 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.4 Contracting Entity; Governing Law; Venue. All references to Sauce Labs under this Agreement, the law that applies to any dispute arising out of or in connection with this Agreement, which courts have jurisdiction over any such dispute, or the applicable alternative method for resolving any such dispute, and the venue location depend on where Customer is domiciled.
Sauce Labs Contracting Entity
Sauce Labs Europe GmbH
Laws of Germany
Any Other Member Country of the European Economic Area, the United Kingdom or Switzerland
Sauce Labs Europe GmbH
Laws of England and Wales
All Other Countries
Sauce Labs Inc
Laws of California and the United States
San Francisco County, California
This Agreement shall be governed by the laws set forth above, based on the domicile of the Customer, without regard to the conflict of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. If Customer is a consumer under applicable law and has its habitual residence in the United Kingdom or the European Economic Area: (i) Customer may benefit from additional rights and protection afforded to it by mandatory provisions of the laws of its country of residence, and nothing in this Agreement shall affect the enforceability of these additional rights and protection; and (ii) Customer may bring a claim to enforce such additional rights and protection in its country of residence.
12.5 Publicity. Customer agrees that Sauce Labs may use Customer’s name and logo on Sauce Labs’ website and in Sauce Labs promotional materials (e.g., presentations, ads, data sheets, and press releases) or as part of a general list of customers. Sauce Labs will promptly cease use of Customer’s name and logo upon Customer’s request.
12.6 Export Laws. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services. Licensee agrees that it will not export or re-export the Services in any form in violation of the export or import laws of the United States or any foreign jurisdiction.
12.7 Government Customers. If Customer is a branch or agency of the United States Government, the following provision applies. The Services, Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
12.8 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (a) if to Customer, the address listed by Customer during the Services registration process (or as otherwise later changed by Customer in its Sauce Labs’ account); and (b) if to Sauce Labs, 116 New Montgomery Street, Suite 300, San Francisco, CA 94105, Attn: Legal (or at such other address as may be given by Sauce Labs at any time) and shall be deemed to have been received by the addressee; (c) if given by hand, immediately upon receipt; (d) if given by overnight courier service, the first business day following dispatch; or (e) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to Sauce Labs (such as for breach) must also be provided in email to: firstname.lastname@example.org (subject heading: Attn: Legal Notice) (but notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer is sufficient to the extent expressly stated in this Agreement. Electronic notices may be delivered via email or to the Customer’s Sauce Labs’ Services account.
12.9 Updates to this Agreement; Waivers. Sauce Labs may supplement, amend, or otherwise modify this Agreement at any time, by providing Customer with at least forty-five (45) days’ notice thereof (electronic notice is sufficient) and such changes will go into effect at the beginning of the next Subscription Term. Except as set forth in the preceding sentence, no supplement, amendment, or modification of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. To the extent this Agreement conflicts with any Order Form, the Order Form shall control (provided that any reference to any other Customer agreement, such as any Customer online click-through terms) shall not apply.
12.10 Entire Agreement. This Agreement, together with any Order Form, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, provided that if Customer and Sauce Labs have executed a separate, negotiated, written agreement with respect to the subject matter hereof, such separate agreement will apply to the exclusion of this Agreement. No terms, provisions or conditions of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, nor have any effect on the rights, duties or obligations other parties hereunder or otherwise modify this Agreement and any such document relating to this Agreement will be for administrative purposes only and will and will have no legal effect, regardless of whether either party executes such document or fails to object to such terms, provisions or conditions.
12.12 Force Majeure. Except with respect to Customer’s payment obligations, neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, epidemic/pandemic, governmental shutdown, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.13 Subcontractors. Sauce Labs may use the services of subcontractors for performance of services under this Agreement, provided that Sauce Labs remains responsible for: (a) compliance of any such subcontractor with the terms of this Agreement; and (b) for the overall performance of the Services as required under this Agreement.
12.14 Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.15 Rights of Third Parties. This Agreement is between Sauce Labs and Customer. No other person shall have any rights or obligations pursuant to this Agreement, including the right to enforce any of its terms.
12.16 Consumer Complaints. To the extent Customer is a consumer under the California Civil Code §1789.3, Customer may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
12.17 EU Dispute Resolution. The EU Commission has created an internet platform for online dispute resolution. The platform serves as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts. More information is available at the following link: http://ec.europa.eu/consumers/odr. Sauce Labs is neither willing nor obliged to participate in this or any other dispute resolution procedure before a consumer arbitration board.
THE FOLLOWING ADDITIONAL TERMS APPLY TO CUSTOMERS LOCATED IN, OR WHO HAVE THEIR HABITUAL RESIDENCE IN, GERMANY:
12.18 German Domiciled Customers. If Customer is domiciled in Germany: (a) Sections 7 (Limited Warranty), 8 (Limitations on Liability), and 10 (Confidential Information) do not apply to Customer and in their place, the provisions of Section 12.19, 12.20, and 12.21 shall apply; and (b) Customer’s indemnification obligations in Section 9.1 shall not apply in case Customer is not responsible (vertreten müssen) for the respective third-party claims, costs, damages, losses, liabilities.
12.19 German Limitations on Liability.
a. Claims of Customer for reimbursement of expenditures and damages (collectively referred to as “Damages”) against Sauce Labs – regardless of their legal basis, in particular due to a culpable breach of obligations under the contractual relationship between Customer and Sauce Labs, or based on tort − are disclaimed, if and to the extent not explicitly regulated otherwise in this Section 12.19.
b. In the event of a breach of material contractual duties (“Cardinal Obligations”), Sauce Labs shall be liable towards Customer for reimbursement of Damages. Cardinal Obligations are all obligations whose breach would jeopardize the achievement of the contractual purpose, as well as all obligations whose fulfilment enables the proper performance of the Agreement in the first place and on compliance with which the Customer can generally rely. However, where a breach of a Cardinal Obligation is due only to slight negligence and does not result in injury to life, limb or health, Customer’s claims will be limited to Damages in the amount of the typically foreseeable damage.
c. Notwithstanding the above Sauce Labs shall also be liable to Customer in cases of intent and gross negligence, for injury to life, limb, or health, in accordance with the German Product Liability Act, as well as in all other cases of mandatory statutory liability, in each case in accordance with the statutory provisions.
d. To the extent Sauce Labs’ liability is limited or disclaimed under the above provisions, this shall also apply to the personal liability of Sauce Labs’ legal representatives, employees, and vicarious agents.
12.20 German Warranty rights
The Customer's statutory defect rights shall be limited as follows:
a. Sauce Labs shall have no strict liability for initial material defects in the Service.
b. The Customer must notify Sauce Labs of material defects, i.e., defects that more than insignificantly restrict the usability of the Services, without undue delay after delivery and document the defect in question in a manner that is comprehensible to Sauce Labs.
c. Sauce Labs shall remedy the defect in question within a reasonable period of time at its own discretion by repairing the defect, providing a workaround solution or delivering an update version and to make the Services available to the Customer free of defects accordingly.
d. If Sauce Labs has not successfully remedied a defect notified in accordance with Section 12.19(b) in accordance with Section 12.19(c) despite two reasonable grace periods, the Customer is entitled to terminate this Agreement.
e. Liability for any claims for damages shall be limited in accordance with Section 12.18.
f. The parties agree that the assumption of a guarantee shall always require an express written commitment on the part of Sauce Labs in which the terms "guarantee" or "guaranteed" are used.
g. This Section shall also apply to any updates, upgrades and new versions of the Services made available under this Agreement, provided and to the extent that such updates, upgrades and new versions do not constitute mere bug fixes.
12.21 German Confidential Information
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Sauce Labs Technology and any Order Form will be deemed Confidential Information of Sauce Labs without any marking or further designation. In addition, to the extent Customer has negotiated pricing with Sauce Labs, such pricing is Sauce Labs’ Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence (using reasonable methods or protection) and not use or disclose any Confidential Information and in any event, and notwithstanding anything to the contrary in this Agreement, will take all reasonable steps to keep the Confidential Information secret as required and to the extent required by section 2 No. 1 lit. b) of the German Act on the Protection of Trade Secrets (Geschäftsgeheimnis-Schutzgesetz). The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can reasonably evidence: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become generally available to the public through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.