Your access to and use of the Platform is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Platform you agree to be bound by these Terms. If you disagree with any part of the Terms, then you may not access the Platform.
1. Registration and account security
- You shall be at least 18 years old to register as a Testpreneur.
- You shall be responsible for keeping your password secret and secure.
- Your account is strictly personal. You shall be responsible for any activity that occurs through your account and you agree you shall not sell, transfer, license or assign your account, username, or any account rights. We prohibit the creation of and you agree that you shall not create an account for anyone other than yourself.
- You represent that all information you provide to us upon registration and at all other times shall be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
- You shall be solely responsible for your conduct and any data, text, files, information, user names, images, graphics, photos, profiles, works of authorship, applications, links and other content or materials (collectively “Content”) that you submit, post or display on or via the Platform.
- You understand and agree that we cannot and shall not be responsible for the Content posted on the Platform and you use the Platform at your own risk.
- If you violate the letter or spirit of these Terms, or otherwise create risk or possible legal exposure for TestGorilla, we may, in sole discretion of TestGorilla, terminate your account.
2. Testpreneur’s general obligations and quality standards
- TestGorilla offers (pre-)employment tests on its Platform. Such tests will be taken by test takers (each a “Test Taker”) at the request of our customers (each a “Customer”). You shall, as a Testpreneur, develop and update such tests (each a “Test” and each a Test consists of Content) in conformity with these Terms.
- Testpreneur shall not have a direct contractual relationship with Test Takers or Customers in relation to the services of TestGorilla. The information you will receive about Test Takers and Customers is their feedback on your test and automated recommendations from the Platform (the “Data”). Testpreneur is, however, free to promote TestGorilla’s services to his contacts.
- You represent and warrant that you have the required qualifications, credentials, and expertise to develop and offer the Tests on the Platform.
- The TestGorilla score and the adjustment thereof shall be up to the discretion of TestGorilla.
- You shall improve, adjust, and update the Tests on the basis of the Data and instructions from TestGorilla as they appear, and on the basis of developments in the field of expertise.
- You shall promptly respond to recommendations from TestGorilla and ensure that the quality of the Platform commensurate with the standards of your industry.
- You shall not introduce any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Platform or operation thereof; scrape, spider, use a robot or other automated means of any kind to access the Platform.
- You shall not create or submit unwanted email, comments, or other forms of commercial or harassing communications (spam) to any users of the Platform.
- You shall not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive content via the Platform.
- You shall not use the Platform for any illegal or unauthorized purpose. You agree to comply with all laws, rules, and regulations (for example state, local and provincial) applicable to your use of the Platform, including but not limited to, copyright laws and laws in relation to employment selection.
- You shall not change, modify, adapt, or alter the Platform or change, modify, or alter another website so as to falsely imply that it is associated with the Platform.
3. TestGorilla’s rights and obligations
- We reserve the right to modify the Platform for any reason, without notice, at any time, and without liability to you.
- We may, but have no obligation to, remove, edit, block, and/or monitor Content or accounts containing Content that we determine in our sole discretion violates these Terms for any reason and without prior notice.
- Content removed from the Platform may continue to be stored by us, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, we encourage you to maintain your own backup of your Content. The Platform is not a backup Platform and you agree that you shall not rely on the Platform for the purposes of Content backup or storage.
- TestGorilla shall not be liable to you for any modification, suspension, or discontinuation of the Platform, or the loss of any Content.
- You acknowledge that the internet may be subject to breaches of security and that the submission of Content or other information may not be secure.
4. Payment and payment terms
- You will earn rewards (each earned reward, a “Reward”) for every paid Test attempt (i.e. when a Test Taker starts a paid test, it costs the customer a Test Credit and you will earn your revenue share). The corresponding payment per Reward and the relevant threshold will be published on the Platform or is as agreed between TestGorilla in your engagement letter.
- You can request payment of the Rewards on the Platform. Payment of the Rewards is subject to a minimum of USD 25 total amount of Rewards and a minimum accumulation period of 30 days.
- Payments shall be made within 30 days after you made the payment request.
- We may offer tests for free in Free Trials or to generate Test Taker statistics quickly during an initial ‘calibration period’. During that period, TestGorilla shall not gain revenue and the Testpreneur shall not earn Rewards.
- If we have to refund Test Credits to the Customer (e.g. because he is not satisfied with the test), we shall withhold or claw back Rewards from the Testpreneur.
- All payments shall be made in USD.
- You shall be responsible for any taxes on your income. We reserve the right to withhold payment if we do not receive proper tax documentation.
5. Intellectual Property Rights
- You represent and warrant that: (i) you own the Content posted by you on or through the Platform or otherwise have the right to grant the rights and licenses set forth in these Terms; (ii) the posting and use of your Content on or through the Platform does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Platform; and (iv) you have the legal right and capacity to enter into these Terms in your jurisdiction.
- You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions, and the authority to authorize TestGorilla, to reproduce, distribute, publicly perform (including by means of a digital audio transmission), publicly display, communicate to the public, promote, market and otherwise use and exploit any of your Content on and through the Platform in the manner contemplated by these Terms.
- You hereby grant TestGorilla and its affiliates a worldwide, exclusive, royalty-free, transferrable right and license to reproduce, distribute, publicly perform, offer, market, and otherwise use and exploit the Content. This right shall survive the termination of this agreement for any cause.
- The Platform contains content owned or licensed by TestGorilla (“TestGorilla Content”). TestGorilla Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and TestGorilla, TestGorilla owns and retains all rights in the TestGorilla Content and the Platform. You shall not remove, alter or conceal any copyright, trademark or other proprietary rights notices incorporated in or accompanying the TestGorilla Content and you shall not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the TestGorilla Content.
- The TestGorilla name and logo are trademarks of TestGorilla, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of TestGorilla.
6. No Warranty
- The Platform, including, without limitation, TestGorilla Content, is provided on an “as is”, “as available” and “with all faults” basis. To the fullest extent permissible by law, TestGorilla does not make any representations or warranties or endorsements of any kind whatsoever, express or implied, as to (i) the Platform, (ii) the TestGorilla Content, (iii) user content or (iv) security associated with the transmission of information to or via the Platform. In addition, TestGorilla hereby disclaims all warranties, express or implied, including, but not limited to, the warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, system integration and freedom from computer virus.
- TestGorilla does not represent or warrant that (i) the Platform will be error-free or uninterrupted, (ii) defects will be corrected, (iii) the Platform or the server that makes the Platform available is free from any harmful components, including, without limitation, viruses or (iv) the information (including any instructions) on the Platform is accurate, complete, or useful.
- Although it is the intention of TestGorilla for the Platform to be available as much as possible, there will be occasions when the Platform may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
- You acknowledge that your use of the Platform is at your sole risk. TestGorilla does not warrant that your use of the Platform is lawful in any particular jurisdiction, and TestGorilla specifically disclaims such warranties. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to you to the extent such jurisdiction’s law is applicable to you and these Terms.
- The definition of TestGorilla in this clause 6 and in clause 7 shall include any of its directors, employees, representatives, or affiliates.
7. Limitation of Liability
- To the extent not prohibited by law, in no event shall TestGorilla be liable to you for any loss or damages of any kind (including, without limitation, for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages) that are directly or indirectly related to:
- the Platform;
- the TestGorilla Content;
- user content;
- your use of, inability to use, or the performance of the Platform;
- any action taken in connection with an investigation by TestGorilla or law enforcement authorities regarding your or any other party’s use of the Platform;
- any action taken in connection with copyright or other intellectual property owners;
- any errors or omissions in the Platform’s operation; or
- any damage to any user’s computer, mobile device, or other equipment or technology including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including, without limitation, damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if foreseeable or even if TestGorilla been advised of or should have known of the possibility of such damages, whether in an action of contract, negligence, strict liability or tort (including, without limitation, whether caused
in whole or in part by negligence, acts of god, telecommunications failure, or theft or destruction of the Platform).In no event shall TestGorilla be liable to you or anyone else for loss, damage, or injury, including, without limitation, death, or personal injury. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.
In no event shall TestGorilla’s total liability to you for all damages, losses, or causes of action exceed the amount of USD1,000, except for damages caused by gross negligence or wilful misconduct by TestGorilla. The foregoing limitations shall apply even if the above-stated remedy fails of its essential purpose.
- TestGorilla shall not be responsible for the actions, content, information, or data of third parties, and you release TestGorilla from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against any such third parties.
- You agree that any claim you may have arising out of or related to your relationship with us must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
- You agree to defend (at the request of TestGorilla), indemnify and hold TestGorilla harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Platform or those conducted on your behalf):
- your Content or your access to or use of the Platform;
- your breach or alleged breach of these Terms;
- your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right;
- your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative, and legislative authorities; or
- any misrepresentation made by you.
- You shall cooperate as fully required by TestGorilla in the defense of any claim. TestGorilla reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you shall not, in any event, settle any claim without the prior written consent of TestGorilla.
- You have the right to deactivate your account and terminate this agreement by sending us a termination notice to email@example.com, taking into account a notice period of at least one month.
- We have the right to terminate this agreement in accordance with clause 1.7.
- In case of termination in accordance with clause 9.1 or 9.2, we shall have the right to either keep on using your Tests (in conformity with clause 5.3) or stop using or deleting your Tests. If, in such case, we keep on using your Tests, it is up to our sole discretion whether or not to attribute Rewards to such use. In case of the latter, you shall not have any rights for any compensation.
- This agreement terminates when, for any reason, TestGorilla ceases its operations. For the avoidance of doubt, a sale of the business of or the shares in or a merger or division of TestGorilla or any of its affiliates, shall not qualify as cease of operations.
- We have the right to terminate this agreement at any time without cause, subject to a one-month notice period. In case of such termination, notwithstanding clause 5.3, or termination in accordance with 9.4, you will have the right to use the Tests for other purposes. Upon termination, all rights granted to you in these Terms shall immediately cease.
- Partial Invalidity: If, at any time, any provision of these Terms shall be or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired.
- Waiver: Failure of TestGorilla to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
- Changes: We reserve the right, in our sole discretion, to change these Terms (“Updated Terms”) from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Platform, and that your use of the Platform after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Updated Terms before using the Platform. The Updated Terms shall be effective as of the time of posting, or such later date as may be specified in the Updated Terms and shall apply to your use of the Platform from that point onwards. These Terms shall govern any disputes arising before the effective date of the Updated Terms.
- Territorial restrictions: The information provided within the Platform is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Platform or any portion of the Platform, to any person, geographic area, or jurisdiction, at any time and in our sole discretion.
11. Governing law and jurisdiction
- These Terms, and any (non-)contractual obligations arising out of or in connection with it, are governed by and construed in accordance with the laws of the Netherlands.
- All disputes between you and TestGorilla (whether or not such dispute involves a third party) with regard to your relationship with TestGorilla, shall be submitted exclusively to the competent court of law in Amsterdam, the Netherlands.