AI Beta Terms of Use

AI Beta Terms. These “AI Beta Terms” are a binding agreement between you (“Customer”) and SmartBear Software, Inc. (“SmartBear”). These AI Beta Terms govern your use of the SmartBear Automated Test AI Feature  (“AI Feature”) and forms a part of, and is incorporated by reference into, the SmartBear Terms of Use or any separate contractual agreement entered into between Customer and SmartBear governing your use of the Zephyr Scale solution (the “Agreement”). Notwithstanding anything to the contrary, to the extent there is a conflict between these AI Beta Terms and the Agreement, these AI Beta Terms will control solely with respect to Customer’s use of the AI Feature.

Limited Access. The AI Feature is a beta feature made available to Customer on a temporary and limited basis. Customer will have access to the AI Feature until the earlier of, (i) written notice of termination from SmartBear; or (ii) the start date of any purchased or standard feature version of the AI Feature (“Beta Period”). SmartBear may terminate or modify Customer’s use of the AI Feature at any time, in its sole discretion.

Use of Artificial Intelligence.   The AI Feature leverages Open AI solutions.  By using the AI Feature, Customer acknowledges and agrees that SmartBear may share certain customer data with OpenAI as may be required for the AI Feature to operate (e.g., Customer’s test parameters or the html of Customer’s website that Customer chooses to analyze with an AI Feature)  (the “Shared Data”). OpenAI will not train their algorithmic models with the Shared Data nor will they store any customer data on other than a transitory basis. Customer is solely responsible for the Shared Content, including compliance with applicable laws and these Beta Terms. Customer will ensure that the Shared Content will not (i) violate any applicable law; (ii) violate these Beta Terms or the Agreement; or (iii) infringe, violate, or misappropriate any of our rights or the rights of any third party. Further, if Customer chooses to use the AI Feature, Customer may not use the AI Feature in a manner that violates any OpenAI Policy, including their Usage Policy and Sharing and Publication Policy.

Restrictions.  Customer should only use the AI Features for evaluation purposes as the accuracy and performance of the AI Feature may vary. Because this is a beta feature, (i) Customer should rely on the results or outputs of the AI Feature at their own discretion; (ii) any data Customer enters into the AI Feature and any configurations made to the Beta Features by or for Customer during the Beta Period may be permanently lost; (iii) there is no guarantee that the AI Feature or functions within the AI Feature will be available permanently, or if available, will be the same, in the general release version of the feature; and (iv) the AI Feature may be inoperable, incomplete, or include errors or bugs. SmartBear is under no obligation to provide Customer any support services with respect to the Beta Features.

Disclaimers and Limited Liability. Notwithstanding anything to the contrary in the Agreement, (i) SmartBear provides the AI Feature “as is” and “as available” without any warranties or representations of any kind and to the extent permitted by law, SmartBear disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement; (ii)  Customer assumes all risks and all costs associated with its use of the AI Feature and in no event will SmartBear be liable for any lost profits, revenues, goodwill, or indirect, special or incidental; provided that if such exclusion of liability is not enforceable under applicable law, SmartBear’s liability with respect to the AI Feature provided during the Beta Period shall not exceed $1,000; and (iii) any obligations on behalf of SmartBear to indemnify, defend, or hold harmless under the Agreement are not applicable to Customer’s use of the Beta Feature. Customer’s sole and exclusive remedy in case of any dissatisfaction or SmartBear’s breach of the Agreement with respect to such AI Feature is termination of the AI Feature.