Managed Services Agreement
EFFECTIVE DATE: May 4, 2026
Testlio Inc. (“Testlio”) provides software testing technology and services (collectively, the “Managed Services”) to help you release your software applications (“Customer Apps”). This Managed Services Agreement (“Agreement”), your signed Order Form, any Exhibits or Amendments, and any additional terms incorporated by reference herein (collectively, the “Agreement”), govern your access to, use of, or receipt of such Managed Services provided or made available to you by or on behalf of Testlio. The terms “Customer,” “you,” and “your” refer to the customer. Testlio and Customer are each individually a “Party,” and collectively the “Parties.”
PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND TESTLIO. BY SIGNING AN ORDER FORM, AND BY RECEIVING OR USING THE MANAGED SERVICES, OTHER SERVICES AND PRODUCTS PROVIDED OR MADE AVAILABLE TO YOU OR BY ACCESSING THE PLATFORM, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.
1. Managed Services and Order Forms.
Testlio will provide you with the Managed Services as further described in an Order Form, and you agree to pay Testlio for such Managed Services in accordance with the fees and payment terms set forth therein. Each Order Form may include a description of the Managed Services, any other services, deliverables (if any) to be provided (“Deliverables”), fees and any specific commercial terms. In the event of any conflict or inconsistency between the terms of the Order Form and this Agreement, the terms of this Agreement shall prevail, provided that the Parties may agree in an Order Form to supersede the terms of this Agreement by specifically identifying and approving in any Order Form the specific terms to be superseded, in which case such terms shall prevail solely with respect to the services or products specified in that particular Order Form.
1.2. Any changes to the Order Form, including without limitation the Managed Services or the Deliverables, shall be mutually agreed upon in writing and executed by an authorized representative of each Party.
2. No Distribution.
You may use any Managed Services or Deliverables provided under this Agreement for Customer Apps only. You shall not sell, license, lease, transfer, disclose, distribute, provide access to, or otherwise make available any Managed Services or Deliverables provided under this Agreement to any third parties, or use the Managed Services for timesharing or service bureau purposes or otherwise for the benefit of any third parties.
3. Ownership.
3.1. Definitions. Capitalized terms used in this Section have the following meanings:
a) “Customer IP” means all data you provide to Testlio, including without limitation, the Customer Apps and your Confidential Information (as defined below) together with any modifications or derivatives thereof of every nature and kind.
b) “Feedback” means any suggestions, ideas, enhancement requests, feedback, recommendations, or any other information provided by you or any other party relating to Testlio Pre-Existing Materials, Managed Services and/or the Platform.
c) “Intellectual Property Rights” means all present and future intellectual proprietary rights recognized in any jurisdiction, whether registered or unregistered, including rights in copyrights, moral rights, trademarks, service marks, trade names, patents, designs, trade secrets, know-how, inventions, algorithms, and similar intellectual or industrial property, together with all related applications, registrations, renewals, and extensions.
d) “Platform” means Testlio’s proprietary platform used to manage and operate the Managed Services together with any modifications or derivatives thereof of every nature and kind.
e) “Residuals” means ideas, know-how, techniques, information and understandings retained in the unaided memory of Testlio’s Personnel (as defined below) as a result of their performance of the Managed Services.
f) “Testlio Pre-existing Materials” means the interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of Managed Services provided by Testlio (whether owned by Testlio or a third party licensor), which were existing prior to a respective Order Form, or any intellectual property developed, licensed or acquired by or on behalf of Testlio or its licensors independent from the Managed Services and Deliverables, together with any modifications or derivatives thereof of every nature and kind.
3.2. Testlio Proprietary Rights. Testlio and its licensors own all right, title and interest (including all Intellectual Property Rights) in and to the Managed Services, Platform, Testlio Pre-Existing Materials; and any Feedback you provide. Except as expressly authorized by Testlio below, you may not make use of the Managed Services, Platform, or Testlio Pre-Existing Materials. Testlio reserves all rights to the Managed Services, Platform, and Testlio Pre-Existing Materials not granted expressly in this Agreement.
3.3. Your License to the Testlio Platform. Testlio hereby grants you, during the term of the Order Form, a non-exclusive, non-transferable, non-sublicensable, non-commercial, worldwide, revocable, limited, royalty-free license to access and use the Platform solely in connection with your internal operations, for the purpose of the receipt of the Managed Services under this Agreement. You shall not, directly or indirectly, sell, license, transfer, disclose, distribute, provide access to, or otherwise make available the Platform to any third party (and shall not permit any third party to do so) or make available the Platform for timesharing or service bureau purposes or otherwise for the benefit of any third parties without Testlio’s prior written consent, which may be withheld at Testlio’s sole discretion. For the avoidance of doubt, Customer may permit its employees and other Personnel, including independent contractors, to access and use the Platform solely for Customer’s internal operations. However, Customer may not use the Platform to engage freelancers or contractors as an alternative to Testlio’s service delivery model. Your access and use of the Platform are subject to the terms set forth in this Agreement and the applicable Order Form.
3.4 Open-Source Software. Certain Deliverables (such as automation test scripts) may be developed using open-source software components (“Open-Source Software”). Customer’s obligation to comply with specific Open-Source Software license terms applies only to the extent such components are expressly included in a Deliverable provided to Customer. Customer’s internal use of such Deliverables does not, by itself, require Customer to disclose or distribute any source code, except as required by the applicable open-source license upon redistribution to third parties. For clarity, no open-source obligations apply to the Testlio Platform or services that are not distributed to the Customer as a standalone code-based Deliverable.
3.5. Customer IP. You own all right, title, and interest (including all applicable Intellectual Property Rights) in and to the Customer IP. You grant to Testlio, during the term of an Order Form, a non-exclusive, fully paid, worldwide, non-transferable, limited license to use Customer IP, solely for the purpose of providing Managed Services and Deliverables.
3.6. Assignment of Deliverables. In the process of performing this Agreement, Testlio may build test cases, create automation test scripts, provide Customer App test results, issues, and insights, or offer other specific Deliverables that are unique to you. Any of these Deliverables must be clearly identified in an Order Form. Testlio agrees to transfer and assign, and does hereby transfer and assign, to you all Intellectual Property Rights in and to such Deliverables developed specifically for you by Testlio under this Agreement. To the extent Testlio Pre-Existing Materials are incorporated into a Deliverable, Customer is entitled to use it as part of the Deliverables for Customer’s non-commercial and internal business operations only. Testlio hereby grants to Customer a perpetual, non-transferable, non-sublicensable, non-exclusive, paid-up right and license to use, copy, modify and prepare derivative works of the Testlio Pre-Existing Materials incorporated into a Deliverable. All licenses granted will be subject to Section 8.
3.7. Residuals Rights; Aggregate Data Use. Testlio has the right to use Residuals to improve, modify, or expand the Platform and Managed Services, provided that nothing in this Agreement is intended to grant any license to Testlio under any trademark, copyright or patent of the Customer IP except as set forth in Section 3.5.
Notwithstanding any provision to the contrary, you agree that Testlio has the right to anonymize your data, aggregate it with other data and leverage anonymous learnings and insights to develop, provide, and improve Testlio products and services.
3.8. Use of Your Data for Artificial Intelligence. Testlio uses artificial intelligence–enabled tools as part of its general business operations and internal workflows, including for productivity, documentation, research, and automation purposes. Such use does not modify Testlio’s confidentiality, data protection, or information security obligations under this Agreement. In addition, in connection with the provision of the Services, Testlio may use artificial intelligence and generative AI tools (“AI Tools”) to process Customer-provided information and service-related data (including testing artifacts, defects, scripts, and Feedback), where reasonably necessary to support service delivery and operational efficiency. Customer acknowledges that AI-generated outputs may contain inaccuracies or limitations. While Testlio applies reasonable human in the loop and quality controls, Testlio does not guarantee the accuracy of AI-generated outputs and disclaims liability for errors arising solely from the use of AI Tools, to the extent permitted by law. Testlio’s licenses for the AI Tools require that the provider (i) does not use, disclose, publish, redistribute or share any Customer IP, (ii) does not learn from the Customer IP or use it train any model, (iii) maintain strict confidentiality and ensures that the Customer IP is never made public, and (iv) stores the Customer IP for the minimum period necessary.
4. Payment. Expenses.
4.1. Payment.
(a) All amounts payable to Testlio for the Managed Services fees shall be paid by means agreed to in the Order Form, except for amounts disputed in good faith, in which case you will provide notice and details of the dispute prior to the invoice due date. Any applicable discounts will be shown on an invoice.
(b) Any Purchase Order (“P.O.”) issued in connection with an Order Form is for your administrative convenience only; the terms of this Agreement and the applicable Order Form shall exclusively govern. Any terms or conditions contained in any P.O. or other document provided by you are expressly rejected and have no force or effect on this Agreement or any Order Form. The issuance, expiration, or non-issuance of a P.O. will not affect your payment obligations.
(c) Testlio reserves the right to: (i) charge interest on undisputed invoices remaining unpaid for more than thirty (30) days after the invoice date at a rate of 1% per month, or a highest rate allowed by law; and/or (ii) suspend the Managed Services until you comply with your payment obligations, and Testlio will not be deemed to be in breach of this Agreement. Any external collection costs, including attorneys’ fees, collection agency fees and any other costs arising from or related to the collections process, incurred by Testlio will be at your expense.
4.2. Expenses. You shall reimburse Testlio for all reasonable out-of-pocket expenses pre-approved by you in writing (including by email) and actually incurred by Testlio in performing the Managed Services.
4.3. Taxes. All fees and other amounts payable under this Agreement do not include any taxes, duties or charges of any kind (including withholding, sales, use, property, excise, or value added taxes) imposed by any foreign, federal, state, or local governmental entity for Deliverables or Managed Services provided under this Agreement. When Testlio has the legal obligation to collect such taxes, the appropriate amount shall be due upon invoice unless you provide Testlio with a valid tax exemption certificate authorized by the appropriate taxing authorities.
5. Customer Responsibilities.
Customer shall provide to Testlio, at Customer’s cost and expense and in a timely manner, the resources and perform the obligations set forth below and any other responsibilities described in the applicable Order Form (collectively, "Customer Obligations"). Customer acknowledges that Testlio’s performance is conditioned upon the Customer’s timely fulfillment of these Customer Obligations. Any failure or delay by Customer in meeting its Customer Obligations may require adjustments to the schedule, fees, or level of effort required by Testlio, and Testlio shall have no liability for any resulting delays or performance issues.
5.1. Resources and Access. Customer shall provide: (a) binary copies of the Customer App subject to the Managed Services; (b) qualified Personnel to confer with Testlio; (c) access to appropriate systems for integration or utilization; and (d) to the extent applicable, access to premises and workspace.
5.2. Software and Consents. Unless otherwise agreed, Customer will provide all software necessary for Testlio to perform the Managed Services and is responsible for obtaining, at no cost to Testlio, all third-party consents or licenses required for Testlio’s use of such products.
5.3. Management and Decisions. Customer will commit the necessary management involvement to support the performance of the Managed Services by Testlio, and all decisions required of the Customer shall be made promptly to avoid service delays.
5.4. Third-Party Relationships. Customer is responsible for managing its contractual relationships with third parties and ensuring their cooperation with Testlio where necessary for service delivery.
5.5. Compliance and Implementation. Customer is solely responsible for: (a) determining if the Managed Services and Deliverables meet Customer’s business and legal requirements; (b) ensuring compliance with internal guidelines and local laws; and (c) determining how and if to implement any recommendations provided by Testlio.
6. Prohibited Conduct.
You agree not to:
6.1. Build, copy, or create a competitive product or service; nor create a competing set of freelancer or independent contractor experiences or services.
6.2 Use the Platform for any purpose other than receiving the Managed Services performed by Testlio under this Agreement, including the access and use of the results and Deliverables generated in connection with those Managed Services. For avoidance of doubt, your Personnel are expressly prohibited from accessing or using the Platform in any tester capacity, and any freelancer or independent contractors accessing or using the Platform in a tester role must be sourced directly from Testlio;
6.3. Use the Managed Services or the Platform for any illegal purpose, or in violation of any local, state, national, or international law;
6.4. Violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating any third party’s Intellectual Property Rights;
6.5. Post or upload to the Platform any user content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
6.6. Interfere with security-related features of the Platform, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content or (ii) reverse engineering, decompiling or otherwise attempting to discover the source code of the Platform or any part thereof;
6.7. Interfere with the operation of the Platform or any user’s enjoyment of the Platform, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Platform, (iii) attempting to collect, personal information about users or third parties without their consent, or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Platform, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
6.8. Perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Platform accounts of others without permission, or falsifying your age or date of birth;
6.9. Sell or otherwise transfer the access granted herein or any Testlio Pre-Existing Materials or any right or ability to view, access, or use any Testlio Pre-Existing Materials; or
6.10. Attempt to do any of the foregoing restricted activities in this Section 6, or assist or permit any persons in engaging in any of the restricted activities described in this Section 6.
7. Personnel, Replacement, and Non-Circumvention
7.1 “Personnel” means employees, contractors, or freelancers. All such Personnel will at all times be considered the Personnel of the Party that provides them and will not for any purpose be considered Personnel of the other Party. Each Party shall assume full responsibility for the actions or omissions of its Personnel and shall be solely responsible for the supervision, direction, control, salaries, workers’ compensation coverage, disability and other insurance, benefits, and all other obligations required by applicable law relating to its Personnel. Either Party may delegate any of its obligations under this Agreement to third parties, provided that the delegating Party shall remain responsible to the other Party for the performance of the delegating Party’s obligations.
7.2 Where Managed Services include dedicated Personnel, you may request a replacement of specific individuals for reasonable cause (e.g., performance issues or professional misconduct). To ensure service continuity and allow for adequate ramp-up, such requests shall not be initiated earlier than ninety (90) days following the commencement of the applicable Managed Services. Testlio will use commercially reasonable efforts to provide a qualified replacement within a reasonable timeframe, subject to availability and onboarding requirements. Notwithstanding the foregoing, you may not request that Testlio take action to replace Personnel because of race, religion, gender, age, disability, or any other legally-prohibited basis under applicable law and Testlio shall not be required to reassign any Personnel in accordance with this Section 7.2. if to do so would, in Testlio’s reasonable opinion, result in a violation of any applicable law.
7.3 In the event that any of the Personnel assigned to provide the Services under an applicable Order Form becomes unable to provide the Services for whatever reason then, Testlio shall notify you and replace that person with a person of equivalent experience and expertise.
7.4 Neither Party will, directly or indirectly, solicit, offer work to, employ, hire, or contract with any of the other Party’s Personnel with whom such Party had contact with during the performance of the Managed Services, nor shall either Party circumvent this Agreement by engaging such Personnel through a third party or sister company, without Testlio’s prior written consent. This restriction remains in effect for the earlier of (i) during the term of this Agreement and for twelve (12) months following its termination or (ii) the twelve (12) months following the date on which such Personnel ceases to be engaged in the Managed Services. However, this Section will not apply to Personnel who independently respond to indirect solicitations (such as general advertisements, employment agency referrals and internet postings) not targeting such Personnel.
8. Confidentiality Obligations.
In the course of performing this Agreement, it may be necessary for either Party to provide confidential information to the other Party. “Confidential Information” shall mean all information disclosed by a Party (in writing, orally, visually or in any other form) to the other Party that is identified as confidential or proprietary, or where such information is considered to be confidential under the circumstances surrounding disclosure, including without limitation Customer Apps, the Platform and Testlio’s pricing information, and including any notes, summaries or extracts thereof. Notwithstanding the foregoing, Confidential Information of the disclosing Party shall not include information that: (i) was in the public domain at the time it was disclosed by the disclosing Party, (ii) becomes part of the public domain without breach of this Agreement by the receiving Party, (iii) was independently developed by the receiving Party as evidenced by written records, or (iv) is or was disclosed by the disclosing Party to a third party without restriction. Any Confidential Information of the disclosing Party shall be used by the receiving Party only in furtherance of this Agreement. The standard of care for protecting Confidential Information of the disclosing Party imposed on the receiving Party is that degree of care the receiving Party uses to prevent disclosure or misuses of its own Confidential Information, but no less than a reasonable degree of care. At the disclosing Party’s request, the receiving Party shall return to the disclosing Party, or destroy, the disclosing Party’s Confidential Information in the receiving Party’s possession or control, including its notes, summaries or extracts thereof. The receiving Party will not disclose any Confidential Information of the other Party except to the receiving Party’s Personnel with a need-to-know to perform this Agreement and who are subject to confidentiality obligations consistent with this Agreement. If the receiving Party should be obligated to disclose Confidential Information of the disclosing Party pursuant to the provisions of a court order, the receiving Party may disclose such Confidential Information only to the extent necessary, provided that the receiving Party shall, to the extent legally permissible, give the disclosing Party prompt notice thereof so that the disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Section 8.
9. Publicity.
Unless otherwise agreed, you hereby consent to inclusion of your company’s name and logo in customer lists that may be published as part of Testlio’s marketing and promotional efforts.
10. Term. Termination.
10.1. Term. This Agreement shall commence as of the Effective Date and shall continue in full force and effect until the completion of all Order Forms, unless earlier terminated as provided herein.
10.2. Termination. Either Party may terminate any Order Form for material breach of such Order Form, a separate Order Form or this Agreement, including Section 6, by the other Party upon written notice to the other Party, provided that the terminating Party has provided written notice to the other Party describing in reasonable detail the other Party’s material breach, and the other Party has not cured such breach within thirty (30) days of such notice.
10.3. Effect of Termination. No expiration or termination of this Agreement will affect any aspect of an Order Form that has not been fully performed; provided, however, if Testlio terminates this Agreement pursuant to Section 10.2. for your failure to pay amounts due to Testlio, then Testlio may elect to immediately cease providing the corresponding Managed Services. Without limiting the foregoing, no expiration or termination of this Agreement will affect your obligations to pay all prorated amounts owed per any Order Form in accordance with Section 1. Sections 8 (Confidentiality Obligations), 10.3. (Effect of Termination), 12 (Limitation of Liability), and 17 (Miscellaneous) shall survive any expiration or termination of this Agreement. Testlio will grant you up to thirty (30) days of additional access to the Platform after termination for data access (“Wind Down Period”). After the Wind Down Period, no additional access nor data rights will be granted.
11. Warranties.
11.1. Managed Services. Testlio warrants that the Managed Services provided under this Agreement shall be performed in a professional and workmanlike manner. The exclusive remedy for any breach of the foregoing warranty shall be that Testlio, at its own cost and expense, and in response to written notice of a warranty claim by you within thirty (30) days after performance of the Managed Services at issue, shall, at its own option, either (i) re-perform the Managed Services to conform to this standard; or (ii) refund you for the amounts paid for non-conforming Managed Services.
11.2. Disclaimer. EXCEPT AS SET FORTH IN SECTION 11.1., TESTLIO SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. WITHOUT LIMITING THE FOREGOING, TESTLIO DOES NOT WARRANT THAT MANAGED SERVICES OR DELIVERABLES OR THE PLATFORM WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, NOR THAT CONTENT, DATA, OR SYSTEM STATE WILL BE UNALTERED OR FREE FROM MODIFICATION RESULTING FROM THE TESTING PROCESS. TESTLIO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE MANAGED SERVICES OR DELIVERABLES, INCLUDING WITHOUT LIMITATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. TO THE EXTENT TESTLIO PROVIDES YOU WITH A SCRIPT, IT IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT ANY WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED. TESTLIO ALSO SPECIFICALLY DISCLAIMS ANY WARRANTIES ON THIRD-PARTY MATERIALS.
11.3. You warrant that you have the right to enter into this Agreement, to allow Testlio to use the Customer IP to perform the Managed Services and to grant whatever rights have been granted herein.
12. Limitation of Liability.
12.1. TESTLIO’S TOTAL LIABILITY TO YOU FOR ANY AND ALL LIABILITIES, CLAIMS, AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWSOEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING BREACH OF CONTRACT OR WARRANTY, TORT, STRICT LIABILITY, STATUTORY LIABILITY, OR OTHERWISE, SHALL NOT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID TO TESTLIO UNDER THE SPECIFIC ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE CLAIM ORIGINATED.
12.2. OTHER THAN CONFIDENTIALITY, OWNERSHIP, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OR EQUIPMENT DOWN TIME, AND LOSS OF OR CORRUPTION TO DATA OR CONTENT, UNAVAILABILITY OF ANY OR ALL OF THE MANAGED SERVICES; OR COST OF REPLACEMENT OR RESTORATION OF ANY LOST CUSTOMER IP) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
12.3. Any claim by you against Testlio relating to this Agreement must be made in writing and presented to Testlio within one year after the date on which you received the Managed Services or Deliverable(s) at issue. The Parties acknowledge that the limitations on liability set out in this Section are essential terms of this Agreement, and the Parties would have not entered this Agreement without them.
13. Indemnity.
13.1. Your Indemnity.
13.1.1. Your General Indemnity. You agree that you will be responsible for your use of the Managed Services and the Platform, and you agree to defend, indemnify, and hold harmless Testlio and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Testlio Entities”) from and against any and all third party claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Managed Services or Platform; (ii) your violation of this Agreement, an Order Form or any applicable law or regulation; (iii) your violation of any third party right, including without limitation publicity, confidentiality, property, or privacy right; or (iv) any disputes or issues between you and any third party.
13.1.2. Your Infringement Indemnity. You agree to defend, indemnify, and hold Testlio Entities harmless from and against any and all third party claims, liabilities, damages, losses, and expenses, including reasonable attorney’s fees and costs, arising from or related to any allegation that the Customer IP violates, infringes, or misappropriates the Intellectual Property Rights of a third party. You will have no obligation for any claims to the extent arising from: (i) Customer IP after you notified Testlio to delete that Customer IP and Testlio has been afforded a reasonable opportunity to do so; or (ii) any unauthorized access or use of the Customer IP by Testlio that is in breach of this Agreement, where the infringement or misappropriation would not have occurred but for such breach.
13.2. Testlio’s Indemnity.
13.2.1. Testlio’s General Indemnity. Testlio will indemnify, defend, and hold harmless you, your affiliates, and your respective employees, directors, officers, principals (partners, shareholders or holders of an ownership interest, as the case may be), and agents (collectively, the “Your Entities”) from and against any third party claims, demands, loss, damage, or expenses (including reasonable attorneys’ fees and court costs) relating to damage to real and/or tangible personal property directly caused by the negligence or willful misconduct of its Personnel during their performance or of the Services.
13.2.2. Testlio’s Infringement Indemnity. Testlio agrees to defend, indemnify, and hold harmless Your Entities from and against any and all third party claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, alleging that your use of the Managed Services or any Deliverable or the Platform provided pursuant to this Agreement, constitutes a direct infringement of a third party’s Intellectual Property Right. Testlio will pay the amount of any damages finally awarded against you. Provided, however, that Testlio will have no obligation for any claims to the extent arising from: (i) Customer IP; (ii) your use of the Managed Services, any Deliverable or the Platform after Testlio notified you to discontinue such use, (iii) unauthorized modification or use of the Managed Services where the infringement or misappropriation would not have occurred but for such unauthorized modification or use; (iv) any use of the Managed Services that is in breach of this Agreement; or (v) any combination of the Managed Services with any other product, service, software, content, data, or method not supplied by Testlio.
If any portion of the Managed Services or the Platform are, or in Testlio’s opinion are likely to be, held to be infringing, Testlio may choose to: (a) procure the rights to use the alleged infringing portion of the Managed Service or the Platform; (b) replace the alleged infringing portion with a non-infringing equivalent; (c) modify the alleged infringing portion to make it non-infringing while still providing substantially the same level of functionality; or (d) may immediately terminate your access to the Managed Services and the Platform by providing you with written notice.
13.3. Indemnity Procedure. The indemnified Party agrees to provide the indemnifying Party with prompt written notice of the claim, reasonably cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defense and settlement of such claim, and grant the indemnifying Party sole control of the defense and settlement of the claim (except that the indemnifying Party may not consent to the entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of the indemnified Party).
14. Service Levels.
14.1. Platform Uptime. Testlio will make commercially reasonable efforts to maintain 99.9% uptime for the Platform.
14.2. Limited Service Days. Testlio maintains holidays based on countries where employees and primary contractors operate. Therefore, Managed Services Personnel will not generally be available when they have a local national holiday. Accordingly, days of limited Testlio resource availability where Service Levels will not be enforced include, but are not limited to: New Year’s Day (January 1), Christmas Eve + Christmas Day + Day After Christmas (December 24-26), New Year’s Eve (December 31). Additionally, Testlio gathers the global team for learning and connection experiences (“LionFest”) one week each year. Service Levels will not be enforced during LionFest. Testlio will provide you advance notice prior to LionFest.
14.3. Build Delivery. To initiate Managed Services on the same business day, Testlio must: 1) receive run initiation materials (including builds, test environment details, release notes, and applicable tests), before 3 p.m. of the time zone stated in the Order Form; and 2) have access to your key Personnel for at least two (2) business hours after the initiation request (for any questions or requirements). Test initiation requests received after 3 p.m. or without your key Personnel available may be addressed on the following business day. Testlio’s recommended practices will be shared during the onboarding process. These may be shared with you by different methods. You hereby acknowledge and agree that choosing a publicly accessible build comes with a risk, and it’s your responsibility to implement additional security measures before sharing the link. You acknowledge and agree that Testlio does not control the flow of the information when builds are shared using public links, therefore Testlio disclaims any liability for any incident that may arise from the use of public build access without the implementation of additional security controls on your end.
14.4. Rollover Hours. Unless otherwise noted, to the extent you engage in an annual Subscription, you are entitled to rollover unused hours of no more than: 1) 20% of the total monthly contracted hours if you are under a monthly utilization, or 2) 10% of the total quarterly contracted hours if you are under a quarterly utilization. You acknowledge and agree that: 1) rollover hours may only be used in the immediate subsequent month; 2) rollover hours in a subsequent month are used after the contracted hours are used; and 3) to qualify for rollover hours, you must be in a current contract term and in good standing, including all invoices being paid on time.
14.5. Other Service Levels. Testlio will make commercially reasonable efforts to achieve any other service levels specified in the Order Form, if any.
15. Privacy Policy.
Your registration for, access to, and use of the Platform and any content, features, products, tools, or services available through the Platform are governed by, and you shall at all times comply with, the Testlio Privacy Policy located at https://testlio.com/privacy-policy/. Please read the Testlio Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Testlio Privacy Policy is hereby incorporated by reference into, and made a part of, this Agreement.
16. Force Majeure.
Except for already triggered payment obligations under this Agreement, neither Party shall be liable for any failure of or delay in the performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, electric, telecommunications or internet failures, fires, floods, wars, civil disturbances, epidemics, pandemics, sabotage, accidents, insurrections, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and within the Party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom a Party is obtaining or must obtain approvals, authorizations, licenses, franchises or permits, or inability to obtain labor, materials, equipment, or transportation (collectively referred to herein as “Force Majeure”). Each Party shall use its reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.
17. Miscellaneous.
17.1. Relationship. The relationship between the Parties is that of independent contractors. Neither Party is, and will not purport to be, the agent of the other Party, nor as having any power to contract on behalf of the other Party. This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement, other than any Testlio technology licensors who have mutually agreed to third party beneficiary terms.
17.2. Assignment. Each Party has the right to assign this Agreement to an acquiring party of its company and/or material assets.
17.3. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein and supersedes any prior understandings, agreements, and proposals, oral and written, between the Parties on such subject matter.
17.4. Export Compliance. The Managed Services, the Platform or other Testlio technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party agrees to comply with all applicable export control and economic sanctions laws and regulations of the United States and any other applicable jurisdictions, including, without limitation, the U.S. Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as well as any equivalent foreign export-control laws. Neither Party shall export, re‑export, release, or otherwise transfer any products, software, technology, or technical data received under this Agreement, directly or indirectly, to any country, entity, or individual prohibited by such laws without obtaining all required government authorizations. Testlio and Customer each represent that it is not identified on any restricted-party list. Customer will not knowingly permit any user to access or use the Managed Services or the Platform in an embargoed country or a restricted designation.
17.5 Disputes. Governing Law, Forum Selection. The Parties will make good faith efforts to resolve any dispute in connection with this Agreement internally within ten (10) days, by escalating it to higher levels of management. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without regard to its choice of laws principles, and each Party irrevocably consents to the exclusive jurisdiction and venue of the federal courts of Travis County. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
17.6. Severability. If any provision of this Agreement will become or be declared illegal, invalid, or unenforceable for any reason whatsoever by any court or other competent tribunal or authority, all other clauses or parts thereof contained in the Agreement will remain in full force and effect and the Parties will negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision.
17.7. Successors. Waivers. This Agreement shall bind and inure to the benefit of each Party’s successors and permitted assigns. Except by a written instrument, signed by the Party against whom enforcement is sought, no breach may be waived, either by action or inaction.
17.8. Updates. Testlio reserves the right to update or modify this Agreement, provided that if Testlio makes material changes, we will provide written notice to you.
17.9. Contact Information and Notices. The Managed Services are offered by Testlio, Inc. with an address of 8911 N Capital of Texas Hwy, Suite 4200 #1081, Austin, TX 78759. You may contact us by sending correspondence to the foregoing address or by emailing us at legal@testlio.com. All notices and requests in connection with this Agreement shall be given in writing and shall be deemed given as of the day they are received either by messenger, delivery service, email to the email address provided by you (provided no delivery failure or bounce-back notice is received), or in US mail, postage prepaid, certified or registered, with return receipt requested. In addition, Testlio may provide you with any notice on or through the Platform or via email, and such notices shall be presumed to have been received on the business day following the day of a successful email transmission or posting on or through the Platform.
Previous MSA Versions: