Freelancer Services Agreement

EFFECTIVE DAY MAY 22, 2024

Thank you for your interest in performing certain services on behalf of Testlio Inc. (“Testlio”) for its customer(s). This Freelancer Services Agreement, and any additional terms incorporated by reference herein (collectively, the “Agreement”), govern your performance of the Services (as defined below). This Agreement will be effective upon your acceptance/signature (“Effective Date”). The terms “Freelancer,” “you,” and “your” refer to you, the individual creating an account, registering to become a Freelancer for Testlio, and/or agreeing to provide or perform the Services. Testlio and you 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 CLICKING “I ACCEPT”, CREATING AN ACCOUNT, REGISTERING TO BECOME A FREELANCER, OR OTHERWISE AGREEING TO PROVIDE THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT CREATE AN ACCOUNT, REGISTER TO BECOME A FREELANCER, OR OTHERWISE AGREE TO PROVIDE OR PERFORM THE SERVICES. IF YOU DO NOT QUALIFY TO PROVIDE OR PERFORM THE SERVICES OR OTHERWISE ENTER INTO THIS AGREEMENT, PLEASE DO NOT ATTEMPT TO CREATE AN ACCOUNT, REGISTER TO BECOME A FREELANCER, OR OTHERWISE AGREE TO PROVIDE OR PERFORM THE SERVICES.

1. Definitions.

1.1. “Confidential Information” has the meaning set forth in Section 3.1.

1.2. “Coordinator” means Testlio’s representative who oversees the Engagement and approves your Services and Deliverables.

1.3. “Customer” means a customer or client of Testlio for which you are performing the Services on behalf of Testlio.

1.4. “Deliverables” means the specific items to be provided by you, pursuant to and as described in an Engagement Requirement.

1.5. “Engagement” means a Customer engagement, subscription, or project, and the Services to be provided by you for such an engagement and each Test Run therein, as identified and described by Testlio from time to time in an Engagement Requirement.

1.6. “Engagement Requirement/s” means, for each Engagement, a description provided or made available by Testlio on or through the Platform (including via a specific Workspace) and/or via other systems or documents that sets forth the Services to be provided by you for such Engagement and any specifications, Deliverables, time schedule for completion of the Services and delivery of the Deliverables, or other requirements for such Engagement. In some circumstances, we may ask you to sign supplemental terms (but only if this is required by a Customer due to the nature of the Services you will perform). 

1.7. “Services” means the services to be provided by you under this Agreement. This includes activities that you undertake that may not be directly compensated, such as skill verification, information validation, profile creation, and availability management. It also includes activities pursuant to and as described in an Engagement Requirement.

1.8. “Test Run” means, within each Engagement, each test run for which you will provide Services in accordance with the applicable test plan, as described in the applicable Engagement Requirement.

1.9. “Platform” means the online portal or website made available by Testlio on or through Testlio’s website located at http://testlio.com or another website identified by Testlio, which you may access and use to view and manage your Engagements and any other Services to be provided by you under this Agreement, as agreed from time to time. You acknowledge and agree that you may be asked to use third-party tools or platforms under an Engagement Requirement, that are subject to additional terms of use that you will honor.

2. Your commitments.

2.1. Work Structure. It’s important that you are clear about your structure and obligations as a Freelancer. Accordingly, you agree to the following:

1. you are operating as a sole, autonomous, independent worker;
2. you are interested in, and are capable of, working with multiple organizations;
3. you are free to accept or decline invitations to work for Testlio specific Engagements and Deliverables, as defined herein, and to apply to Work Opportunities;
4. you have and will utilize your own equipment and facilities to perform Services;
5. you may set your own hours and work when and how it is best for you;
6. you are a natural person who is 18 years of age or older and who will do all work by yourself;
7. you are legally permitted to work for Testlio as a Freelancer and your work will not violate any non-compete or other agreements that you have with third parties; additionally your work with Testlio will not interfere with, disrupt, or be done in parallel to work with other parties;
8. you agree to not use multiple accounts, email addresses, aliases, or other duplicate identifiers. All work must be performed via one Testlio account that is connected to your true, reputable and verifiable identity per the below;
9. you agree to work under your true, verifiable identity, and to provide Testlio with means to verify your identity, in accordance with Testlio’s Verification Process. This verification will be required when you are added to your first Customer Workspace, and may be further required by Testlio at times to ensure ongoing accuracy. During verification some account features may be temporarily limited and will be restored if verification is successfully completed. Testlio reserves the right to suspend your account or withhold your payment until you comply with this requirement; and
10. you must have a valid, unique payment receipt method before performing any work for us. You acknowledge and agree that payment accounts cannot be shared.

2.2. Timeliness. You will promptly and satisfactorily perform all of your obligations under this Agreement and each Engagement Requirement and you will meet such obligations in a high quality and timely manner, noting that work Deliverables must sometimes be turned around in a matter of minutes or hours based on urgent Customer needs. Accordingly, you will make best efforts to respond within two (2) business hours. You will protect and promote the interest of Testlio and comply with all instructions given to you during the performance of your Services. You understand that full payment is based on timely and compliant performance under the applicable Engagement Requirement. You shall be responsible for accepting or declining invitations to Engagements and specific units of work in a manner that demonstrates that time is of the essence.

2.3. No Subcontracting Work. You must perform all Services by yourself. Unless otherwise expressly permitted in writing, Testlio does not accept any subcontracting or otherwise assigning Services to other individuals or parties.

2.4. No Parallel Work. Testlio requires you to focus on tasks for Customers when performing those tasks (e.g. doing exploratory testing work). Accordingly, it is of the utmost of importance that you only perform one task at a time. Undertaking parallel or simultaneous work, whether for Testlio, another freelance platform, a third-party contract provider, or an employer, is prohibited and is grounds for immediate termination and loss of any future Freelancer Engagement opportunities.

2.5. No Location Spoofing. Testlio Customers often require Freelancers to be in specific locations (countries, cities, stadiums, stores, etc.). Accordingly, and unless otherwise specifically instructed in writing via an Engagement Requirement, the use of VPNs, fraudulent GPS systems, third parties, or other means to spoof locations is prohibited and is grounds for immediate termination and loss of any future Engagement opportunities.

2.6. Inappropriate Conduct. Testlio is committed to conducting its business free from any unlawful, unethical, or harmful activity. You acknowledge and agree not to act in any manner associated with inappropriate conduct, for which Testlio has zero tolerance. Behaving in a manner related to the inappropriate conducts constitute grounds for immediate termination. Inappropriate Conduct includes, but is not limited to, the following:

1. harassment, violence, threats, or physical touching to less obvious actions like ridiculing, teasing, or repeatedly bothering other peers. Offensive comments, unwelcome sexual invitations, innuendos or veiled threats; sexual harassment, posting or engaging in any innappropriate content or behaviour in the Testlio Platform or via Testlio provided tools which allow communication between peers, etc.;
2. mistreatment based on any personal attributes, including: race, color, ethnic or national origin; age; religion; sexual orientation, gender identity, political views, among others;
3. unlawful discrimination; a discriminatory conduct can include taking actions based on a person’s protected status, treating someone differently or unfairly;
4. abusive conduct or other intimidating or aggressive behavior;
5. intoxication (via alcohol, drugs, or other substances) during the performance of your Services;
6. fraudulent behavior, including and not limited to: providing false information about your experience, skills or qualifications; providing false information about the devices that are within your possession or direct control; or using Testlio’s provided payment systems to inappropriately acquire goods and services.

If Testlio has grounds to believe you behaved in a manner related to any of the conducts above (or any variation whatsoever), Testlio shall have the right to exercise its termination rights, in accordance with Section 10.3. You further agree to comply with Testlio’s Anti Harassment Policy and Testlio’s Whistleblower Policy.

2.7. Issues and Feedback. You shall provide feedback, suggestions, ideas, enhancement requests, recommendations, results, reports, and other information, including without limitation information identifying potential or actual errors, bugs, or issues, to Testlio in connection with each Engagement and/or the Services (“Feedback”) in a clear, thorough, and timely manner. If you are asked to convey software bugs via issue reports, it is of the utmost of importance that you operate with the highest degree of professional standards to identify and report any and all issues that you uncover.

2.8. Facility Rules. You will comply with Testlio’s or Customer’s facility rules if ever at Testlio facilities. You also agree that you will not bring onto Testlio’s premises or transfer onto Testlio’s technology systems any unpublished document, proprietary or confidential information, or trade secrets belonging to any third party unless disclosure to, and use by, Testlio has been consented to in writing by such third party.

2.9. Risk of Loss. You shall bear all risk of personal injury, and loss and damage to your personal property and equipment, unless caused by the gross negligence or willful misconduct of Testlio.

2.10. Language. All your Services (and all testing work) will be performed in English, unless otherwise agreed in the applicable Engagement Requirement.

2.11. No Direct Customer Work. You understand and agree that Testlio’s business is our people. Therefore, in addition to Section 4.4. below, you agree that during the term of this Agreement and for a period of 6 months following the termination of your Services, you will not approach our Customer, its affiliate or its business partner for purposes of seeking employment or business arrangements, without obtaining Testlio’s prior written consent and approval. For clarification purposes, this Section will only apply to those Customers to whom you provide Services directly through Testlio.

2.12. Device Integrity. You will not use devices that have been infected with a computer virus or otherwise compromised. You acknowledge and agree that the use of emulators and rooted/jailbroken devices is prohibited (unless you are requested by Testlio in writing, in a specific Workspace). 

You acknowledge and agree that Testlio has the right to validate your device at any time via: i) systems within the Testlio Platform; ii) third party tools and scanners; or iii) Testlio scanner agents. Testlio will have the right to choose the means by which the validation will be performed.

2.13. Use of Recording Tools. To ensure compliance for our Customers, and to improve our systems and processes, Testlio reserves the right to employ screen and other session recording tools. Anytime these tools are used you will receive notification.

2.14. Use of Artificial Intelligence (AI). Unless otherwise expressly authorized, use of public artificial intelligence tools is not permitted while performing Services for Testlio. You acknowledge and agree that you will only use artificial intelligence tools that are available on our Platform, and only to the extent enabled in a Customer Workspace. In addition, you agree to comply with the AI Acceptable Use Policy. 

3. Confidential Information.

3.1. Confidential Information. “Confidential Information” means any information (including any and all combinations of individual items of information) that relates to the actual or anticipated business and/or products, research or development of Testlio, its affiliates or subsidiaries or to Testlio’s, its affiliates’ or subsidiaries’ technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding Testlio’s, its affiliates’ or subsidiaries’ products or services and markets therefore, customer lists and customers’ (including, but not limited to, customers of Testlio on whom you called or with whom you became acquainted during the term of this Agreement), source code, object code, software, developments, inventions, discoveries, ideas, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by Testlio, its affiliates or subsidiaries, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of Testlio, its affiliates or subsidiaries. All the information, regardless how it is disclosed or whether it is marked as confidential or not, shall be treated as confidential. You will be exposed to Confidential Information from Testlio Customers and you agree to treat that information with the highest degree of care. Notwithstanding the foregoing, Confidential Information shall not include any such information which you can establish (i) was publicly known or made generally available prior to the time of disclosure to you; (ii) becomes publicly known or made generally available after disclosure to you through no wrongful action or inaction of you; or (iii) is in your rightful possession, without confidentiality obligations, at the time of disclosure as shown by your then-contemporaneous written records; provided that any combination of individual items of information shall not be deemed to be within any of the foregoing exceptions merely because one or more of the individual items are within such exception, unless the combination as a whole is within such exception.

3.2. Protection of Confidential Information. You will protect the Confidential Information in strict confidence, at all times and in the same manner as you would protect the confidentiality of your own proprietary and confidential information, but in no event with less than with the highest standard of care. You must only use Testlio’s Confidential Information solely for the exercise of your rights and satisfaction of your obligations under this Agreement. In addition, you acknowledge and agree that you will comply and honor Testlio’s Security and Privacy Policy.

3.3. Compelled Disclosures. If you become legally compelled to disclose any Confidential Information of Testlio, you may furnish only that portion of the Confidential Information that is legally required to be disclosed; provided, however, you will provide Testlio prompt written notice, if legally permissible, and will assist Testlio in seeking a protective order or another appropriate remedy.

3.4. Return or destruction of Confidential Information. Upon the expiration or termination of this Agreement, or upon the completion of a particular Engagement or Deliverable, you will, either destroy or return all Confidential Information of Testlio in your possession or control. You acknowledge and agree that you must not and will not hold Confidential Information of Testlio nor of Testlio’s Customers after you have completed the Services.

3.5. Confidentiality of Agreement. Each Party agrees that the provisions and the existence of this Agreement and any and all Engagement Requirements will be treated as the other Party’s Confidential Information. Each Party may disclose the provisions of this Agreement and any and all Engagement Requirements pursuant to this Section 3.2 and 3.3, as well as under any of the following circumstances: (a) in connection with the requirements of a public offering or securities filing; (b) in confidence, to accountants, banks, and financing sources and their advisors; (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; and (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.

4. Services.

4.1. Services. You will perform the Services, including deliver any Deliverables and complete any and all Engagements, described in the applicable Engagement Requirements, in accordance with the terms and conditions of this Agreement and the applicable Engagement Requirements. All incidental services, products, materials and tasks necessary to provide the Services and Deliverables, including onboarding activities, shall be provided at no additional cost to Testlio unless otherwise specified in an Engagement Requirement or a related document (e.g. an Addendum to this Agreement). Each Engagement Requirement is incorporated into this Agreement by reference.

4.2. Changes. Testlio may at any time request through the Platform changes to an Engagement Requirement (“Change Request”), including changes that affect the Services or Deliverables and changes to the delivery schedule. Upon receiving such written request, you will acknowledge receipt of the Change Request and immediately suspend any work which reasonably would no longer be useful to Testlio based upon the proposed modification. You will respond to any Change Request as quickly as possible, with best efforts to respond within two (2) business hours. Your response will describe all changes to the applicable Engagement Requirement necessary in order to accommodate the Change Request. You will use all commercially reasonable efforts to accommodate each Change Request.

4.3. Acceptance. The Services or Deliverables must meet a milestone or completion time, specifications, and acceptance criteria set forth in each Engagement Requirement (“Acceptance Criteria”). Testlio, with your cooperation and reasonable assistance, will conduct acceptance tests to verify whether the Services and Deliverables meet the Acceptance Criteria. Testlio shall have as the “Acceptance Period” the longer of (i) the specific period mutually agreed upon and set forth in the applicable Engagement Requirement, or (ii) twenty (20) business days. Testlio may reject any Services or Deliverables that do not conform to the applicable Acceptance Criteria. You will promptly remedy such nonconformance at no additional cost to Testlio nor our Customers. If you do not remedy any nonconforming Services or Deliverables within five (5) business days, or another period of time mutually agreed upon by the Parties in an Engagement Requirement, after Testlio’s notice of rejection, in addition to all other remedies available to Testlio: (a) Testlio may immediately terminate the applicable Engagement for cause, (b) Testlio will have no obligation to pay for such Services or Deliverables, expenses, or materials expended by you in connection with the creation or delivery of such Services or Deliverables, and (c) Testlio may require you to refund Testlio within ten (10) business days of Testlio’s written request for payment, all amounts previously paid by Testlio to you in connection with creating or delivering such Services or Deliverables.

4.4. Coordination. Testlio will reasonably cooperate with you and timely complete tasks for which it is responsible as set forth under this Agreement and in any applicable Engagement Requirement. Testlio’s failure to perform such tasks will not be grounds for termination by you. Unless authorized by Testlio in writing, you will not contact any Customer in connection with this Agreement, the Services or Deliverables. If any Customer contacts you in connection with this Agreement, the Services or Deliverables, and Testlio has not authorized you to contact such Customer regarding the subject matter of Customer’s communication, you shall immediately refer such Customer to Testlio and provide Testlio written notice of such communication.

5. Compensation and Billing.

5.1. Fees. During the Term of this Agreement and the applicable Engagement Requirement, and in accordance with the fee structure set out through the Engagement Requirement, Testlio agrees to compensate you for your Services and Deliverables after you complete those Services and Deliverables, and deliver a work unit as part of an Engagement. You acknowledge and agree that Services and Deliverables shall be accepted by Testlio, and such acceptance triggers the payment. Therefore, you understand that if your Services do not materially meet the quality standard required, Testlio may not accept your work, and you will receive partial payment or no payment for that specific Service/task. As a way of an example only, missing the correct attachment in your report causing Testlio to reperform, or if a Customer is not able to fix a bug due to your report attachment being missing. Payment typically occurs within ten (10) business days of work approval. You acknowledge and agree that payment is subject to compliance with Sections 2.1.8, .2.1.9 and 2.1.10, therefore, it is of the utmost importance that you verify your ID timely.

5.2. Taxes. You shall be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes levied, imposed, or arising as a result of this Agreement or your performance of the Services, except for taxes based solely on Testlio’s net income. If Testlio is required by law, statute, or regulation to pay certain taxes associated with any Services or Deliverables, Testlio expressly agrees to pay such taxes, provided that all invoices must be itemized for any applicable sales, use, excise, or other transactional taxes required to be paid by Testlio. You agree to indemnify and hold harmless Testlio and its affiliates and their directors, officers, and employees from any and all claims, damages, liability, settlement, attorney’s fees and expenses, as incurred, on account of the foregoing.

6. Intellectual Property.

6.1. Your Materials. You will retain all right, title and interest, including all intellectual property rights, in and to all technology you developed prior to the Effective Date of this Agreement or that you develop independently of any obligations under this Agreement or an Engagement Requirement (collectively, “Your Materials”).

6.2. Assigned Deliverables.

(a) Except for Your Materials or as otherwise expressly agreed upon between the Parties in an applicable Engagement Requirement, the Parties agree that all Deliverables and any and all Feedback (“Assigned Deliverables”) will be the sole and exclusive property of Testlio or Testlio’s Customers and will be considered “works made for hire”. You hereby assign all right, title and interest, including all intellectual property rights, in and to all Assigned Deliverables to Testlio (understanding that Testlio may assign these materials to its Customers). You waive any moral rights in the Assigned Deliverables.

(b) You agree to render, at Testlio’s expense for any of your out of pocket expenses, all reasonably required assistance in a timely manner to protect Testlio’s rights in the Assigned Deliverables pursuant to this Section 6.2.

(c) Prior to incorporating any of Your Materials or third-party materials, including any open source software, in any Deliverable or Feedback, you shall obtain Testlio’s express written approval therefore. If you do not obtain Testlio’s prior written approval to incorporate any of Your Materials, open source software or third-party materials, you warrant that you will not incorporate them into a Deliverable provided pursuant thereto. To the extent that you incorporate any of Your Materials into the Assigned Deliverables, you hereby grant to Testlio and its customers a perpetual, royalty-free, irrevocable, non-exclusive, non-transferable license and a worldwide right to copy, distribute, create derivative works, perform, display in any form or medium, make, use, sell, reproduce, offer to sell and import Your Materials with the Assigned Deliverables. Testlio has the right to sublicense its license under this Section 6.2.(c).

6.3. Use of Trademarks. Neither Party, without the express prior written consent of the other Party, may use the name, trademarks, trade names, or service marks of the other Party or its customers or affiliates, or quote the written or oral opinion of any employee of the other Party in any advertising, presentations or otherwise. Neither Party may issue any press release or public notice concerning Testlio’s use of the Deliverables or Services or otherwise reference the relationship of the Parties under this Agreement without the express prior written consent of the other Party.

7. Warranties.

7.1. Mutual warranty. Authority. Each Party hereby warrants and represents to the other Party that it has full power, right and authority to enter into and consummate this Agreement and that such action does not violate the terms of any other agreement with any third party.

7.2. Your additional warranties.

1. Laws and Regulations. You represent and warrant that your performance of Services and delivery of Deliverables pursuant to this Agreement or any Engagement Requirement does not and will not violate any applicable law, rule, or regulation.
2. Industry Standards. You represent and warrant that you will deliver the Services in a professional and workmanlike manner in accordance with highest industry standards.
3. Viruses. You represent and warrant that: 1) you will use industry standard device protection software (including anti-virus, anti-malware, and anti-spyware); 2) you have not introduced any viruses or harmful or disabling code into any of the Deliverables; and 3) the Deliverables will not permit the introduction of any viruses or harmful or disabling code into any systems or devices
4. Services and Deliverables. You represent and warrant that the Services and Deliverables will conform to the applicable performance standards, service levels, specifications, and Acceptance Criteria, set forth in the applicable Engagement Requirement. Testlio may notify you of any nonconformance via email and/or the Platform and you must respond to any such notification and remedy any such nonconformance in accordance with Section 4.3. of this Agreement and the applicable Engagement Requirement and notification.
5. IP Infringement. You represent and warrant that all work under this Agreement shall be your original work and neither the Services nor Deliverables nor use or other exploitation of the Deliverables, infringes or otherwise violates the intellectual property rights or other proprietary rights of any third party. This includes the use of genuine software, with an active license, during the performance of your Services.

8. Indemnification.

8.1. Your Indemnification.

(a) IP Infringement. You will indemnify, defend, and hold harmless Testlio, and their respective affiliates, directors, partners, officers, employees, representatives, agents, successors and assigns (collectively, the “Indemnitees”) from and against any and all claims, liabilities, losses, damages, deficiencies, actions, judgements, interest, awards, reasonable and necessary expenses actually incurred (including reasonable attorneys’ fees), fines, penalties, taxes or damages (collectively “Liabilities”) asserted against Testlio, whether or not brought by a third party to the extent such Liabilities result from the infringement by the Services or Deliverables, or use or other exploitation of the Deliverables, upon any third party’s intellectual property rights or proprietary rights. If the Services or any Deliverables are found, or in your reasonable opinion are likely to be found, to infringe on any third party’s intellectual property right or proprietary right, in addition to its indemnity obligation, you may within a reasonable time, at your option and sole expense, (i) secure for Testlio the right to continue the use of such infringing item, (ii) replace such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing (provided such modification will not adversely affect Testlio’s intended or foreseeable use of the item as contemplated under an Engagement Requirement), or (iii) if neither of the preceding two options is feasible, accept return of the infringing item from Testlio and refund to Testlio the amount paid to you for such item and the Services provided in connection with such item. Testlio, in addition, will have a right against you for any direct damages incurred by Testlio, and the reduction in value to Testlio or other Services or Deliverables provided by you based upon the removal of the infringing item.

(b) Other. You will indemnify, defend and hold harmless the Indemnitees from and against any and all Liabilities incurred by or asserted against Testlio whether or not brought by third parties relating to or arising out of (i) bodily injury (including death), damage to real, tangible, or intangible property resulting from your acts or omissions, (ii) breach of any of your warranties or attestations in this Agreement or any Engagement Requirement, (iii) violation by you or your suppliers or any third parties you utilize to provide the Services of any governmental laws, rules, ordinances, or regulations, (iv) any claim of nonpayment by or on behalf of any third party tools that you utilize to provide the Services, or (v) your negligence, bad faith or misconduct.

8.2. Notice. In the event of any Liabilities for which Testlio is seeking indemnification, Testlio will timely notify you of such Liabilities, give you the right to control and direct the defense (at your sole expense) and any settlement of any such claim, and give you reasonable cooperation for the defense of the same. Notwithstanding anything to the contrary above, you may not enter into any settlement or other disposition of any Liabilities that impact Testlio, including without limitation any admission of liability and any amounts that Testlio would be required to pay under any settlement or adjudication, without Testlio’s prior written approval.

9. Limitations of Liability.

YOU AGREE, ACKNOWLEDGE AND UNDERSTAND THE IMPLICATIONS OF THIS SECTION 9. EXCEPT FOR AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 8, OR FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS OF SECTION 3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION 9 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE. TESTLIO’S MAXIMUM LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, TORT, BREACH OF STATUTORY DUTY, OR OTHERWISE ARISING, SHALL NOT, IN THE AGGREGATE EXCEED THE FEES PAID FOR THE SERVICES UNDER THE APPLICABLE ENGAGEMENT REQUIREMENT THAT GAVE RISE TO THE CLAIM. YOU ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS A SPECIFIC INDUCEMENT FOR TESTLIO TO ENTER INTO THIS AGREEMENT AND FAIRLY ALLOCATES THE RISK BETWEEN THE PARTIES WITH RESPECT TO THE BENEFITS DERIVED.

10. Term; Breach, Suspension, and Termination.

10.1. Term. The term of this Agreement will continue until terminated in accordance with this Section 10 (“Term”). The term of each Engagement Requirement will begin and end on the dates contained in such Engagement Requirement.

10.2. Termination for Convenience. Either party may terminate this Agreement and/or Services related to an Engagement Requirement, for any or no reason upon notice to the other, provided that you may terminate this Agreement pursuant to this Section 10.2. only if there is no active or current uncompleted Services for any Engagement for which you have already agreed to provide such Services. Testlio may also delete your Platform and/or other related accounts at Testlio’s own discretion if you have been inactive for 180 days or more, provided that Testlio will make reasonable efforts to give you with prior written notice.

10.3. Termination for Cause. Testlio may immediately terminate any outstanding Engagement Requirement and this Agreement upon written notice to you if you breach this Agreement, fail to perform your duties, or behave in a manner inconsistent with Section 2.6.

10.4. Payment Following Termination. Within thirty (30) days after the termination date, Testlio will pay you all authorized fees (subject to acceptance of Deliverables in accordance with Section 4.3.) and expenses that have been incurred in connection with the performance of the Services and Deliverables in accordance with this Agreement and any applicable Engagement Requirements. In addition, in the event Testlio has prepaid for any Services or Deliverables that have not been performed, you will refund within thirty (30) days any amount due to Testlio if it exceeds any amount Testlio owes you. No other payments shall be made by either Party as a consequence of the termination of this Agreement.

11. Survival.

Sections 1, 3, 5.2, 6.1, 6.2, 7.2, 8, 9, 10.2 through 10.4, and 12 through 15 will survive any expiration or termination of this Agreement.

12. Notices.

All notices contemplated under this Agreement shall be in writing and shall be deemed received as reasonably evidenced by way of receipted mail (including overnight delivery, or certified mail), postage prepaid as applicable and addressed as follows:

If to Testlio:
Address: Testlio Inc.
8911 North Capital of Texas Highway,
Suite 4200 #1081
TX 78759
Attention: Testlio Network Director
Email: legal@testlio.com 

If to you:
Via information provided in the Engagement Requirement or Platform.

In addition, Testlio may provide you 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.

A Party may from time to time change its address or designee for notification purposes by giving the other Party prior notice, pursuant to the terms of this Section 12, of the new address or designee and the date upon which the change will become effective, with the effective date of the new address or designee being at least ten (10) days after receipt of notice by the other Party.

13. Dispute Resolution.

13.1. Governing Law. This Agreement will be interpreted and enforced according to the laws of the State of Delaware, without regard to its conflict of laws principles. In the event a dispute or claim arises between the Parties hereto arising out of or in connection with or with respect to this Agreement or the interpretation, performance, breach, or termination thereof, such dispute or claim shall be determined and finally settled by binding arbitration in New Castle County, Delaware, in accordance with the rules of the American Arbitration Association by one (1) arbitrator appointed in accordance with those rules. The award rendered thereon by the arbitrator shall be final and binding on the Parties, and judgment thereon may be entered in any court having jurisdiction thereof. Nothing in this Section shall prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief.

13.2. Jurisdiction. To the extent that any lawsuit or court proceeding is permitted under this Agreement, the Parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state courts and federal courts located within New Castle County, Delaware for the purpose of litigating all such disputes.

14. Additional Terms; Modifications.

14.1. Additional Terms. Your registration for, access to, and use of the Testlio website located at http://testlio.com and any content, features, products, tools, or services available through the website (including without limitation the Platform) are subject to, and you shall at all times comply with, the Testlio Terms of Use located at http://testlio.com/terms, the Testlio Privacy Policy located at http://testlio.com/privacy, and any and all additional terms, policies, rules, or guidelines applicable to such content, features, products, tools, or services that Testlio may post on or link to on the website, such as end-user license agreements for any downloadable applications that Testlio may offer, or rules applicable to particular features or content on the website.

14.2. Modifications. Testlio reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. You should check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies your rights or obligations, Testlio will make reasonable efforts to notify you of such change. Testlio may provide notice through a pop-up or banner within the Platform or Testlio website, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Agreement materially modifies your rights or obligations, Testlio may require you to provide consent by accepting the changed Agreement. If Testlio requires your acceptance of the changed Agreement, changes are effective only after your acceptance. If you do not accept the changed Agreement, Testlio may terminate the Agreement and/or suspend your account without liability. All other changes are effective upon publication of the changed Agreement. Disputes arising under this Agreement will be resolved in accordance with the Agreement in effect at the time the dispute arose.

15. Miscellaneous.

15.1. Assignment. You shall not assign this Agreement, or assign, delegate, or subcontract any of your obligations or rights under this Agreement, in whole or part without the express, prior written consent of Testlio. Testlio may freely assign this Agreement and its rights and obligations in whole or in part without your consent. Any purported assignment of rights in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors, and permitted assigns.

15.2. Entire Agreement. The Parties agree that this Agreement and the applicable Engagement Requirement contains the entire agreement among the Parties with respect to the Services and Deliverables, and supersedes all prior or contemporaneous agreements or negotiations whether oral, electronic, or written including but not limited to end-user license agreements, web-based licenses or agreements or confidentiality agreements.

15.3. Independent Entity. You are performing the Services as an independent entity, and thus you are not, nor may represent yourself as, an employee, partner, joint venturer, consultant, representative or agent of Testlio, and neither Party has, nor may represent that they have authority to bind the other, or be or become liable or bound by any representation, act or omission whatsoever of the other.

15.4. Severability. If any term or condition of this Agreement or an Engagement Requirement is held to be invalid, void or unenforceable, the remainder of this Agreement or an Engagement Requirement will remain valid and enforceable to the fullest extent permitted by law.

15.5. Headings. The section headings used herein are for reference and convenience only and will not affect the interpretation hereof.

15.6. Waiver. No single or multiple delays, failure to exercise, or partial exercise of any right or remedy will operate as a waiver thereof unless agreed to in an executed writing by the Party to be bound thereby.

15.7. Force Majeure. The Parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or internet failures, wars, rebellions, blockades, act of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such Party.