Testlio Managed Services Agreement

Testlio Inc. (“Testlio”) provides software testing technology (software) and services (people) (collectively, the “Managed Services”) to help you release your software applications (“Customer Apps”). This Managed Service 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 (whether an individual or entity) creating an account, submitting a project request for test services, or otherwise obtaining, receiving, accessing, or using any Managed Services provided or made available to you by or on behalf of Testlio. 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, CREATING AN ACCOUNT, REGISTERING TO RECEIVE OR USE ANY MANAGED SERVICES, OR OTHERWISE OBTAINING, RECEIVING, ACCESSING, OR USING ANY SUCH SERVICES PROVIDED OR MADE AVAILABLE TO YOU BY OR ON BEHALF OF TESTLIO, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.

1. Managed Services. Testlio will provide the Managed Services to Customer as described in an Order Form, including without limitation on or through the online portal or other software platform identified by Testlio (the “Platform”), each of which will be subject to the terms and conditions of this Agreement (general Testlio website use is governed by a separate set of online terms). Customer will pay Testlio for Managed Services in accordance with all Order Forms (including any Exhibits or Amendments).
2. Order Forms.
   a. Each Order Form may include the following: (i) the Customer Apps that are the subject of the Managed Services; (ii) a description of the Managed Services; (iii) a description of the deliverables, if any, to be provided by Testlio to Customer in connection with the Managed Services (“Deliverables”); (iv) the fees to be paid by Customer for the Managed Services; (v) the roles and titles from Testlio and the tester community assigned to the Managed Service; (vi) the number of test cycles covered; (vii) the number of devices covered; (viii) the turnaround times for test cycles; (ix) any localization languages supported; (x) any automation scripts managed; (xi) any specific regions covered for livestream monitoring.
   b. Any changes to the Order Form, including without limitation the Managed Services or the Deliverables, shall be mutually agreed upon in a writing executed by an authorized representative of each party (“Amendment”). The parties acknowledge that such changes may affect both the fees and any schedule set forth in the Order Form. At a minimum, each Amendment shall document (i) the change requested and its effect on the Managed Services and Deliverables, (ii) any adjustments to any schedule to the extent specified in the Order Form, and (iii) any increase or decrease in the fees.
3. No Distribution. Customer may use any Managed Services or Deliverables under this Agreement for Customer Apps only. Customer shall not distribute or provide any Managed Services or Deliverables under this Agreement to third parties.
4. Ownership; Proprietary Rights. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform and Managed Services (the “Materials”) provided by Testlio are protected by all relevant intellectual property and proprietary rights and applicable laws. Customer acknowledges and agrees that, as between Testlio and Customer, Testlio and its licensors own all right, title and interest (including all intellectual property rights) in and to the Managed Services, Platform, and Materials. Except as expressly authorized by Testlio, you may not make use of the Managed Services, Platform, or Materials. Testlio reserves all rights to the Managed Services, Platform, Materials not granted expressly in these Terms.
5. Assignment of Deliverables. In the process of performing this Agreement, Testlio may create automation test scripts, provide Customer App test results and insights, or offer other Deliverables specifically for Customer that are unique to Customer. 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 Customer all intellectual property rights in and to such Deliverables developed specifically for Customer by Testlio under this Agreement.
6. Payment; Expenses.
   a. Payment. All amounts payable by Customer to Testlio for Managed Service Fees shall be paid by means agreed to in the Order Form. Standard terms are quarterly payment in advance, 30-day payment from invoice date, and payment by bank wire. If Customer has signed up for, used, accessed, received, or elected to receive (or at any time during the Term signs up for, uses, accesses, received, or elects to receive) any additional services (other than Managed Services) or additional content, features, tools, or functionality on or through the Platform or the Site (other than those provided as part of the Managed Services), Customer acknowledges and agrees that such additional services, content, features, tools, or functionality may be governed by separate terms and conditions, and Customer agrees to pay any and all applicable fees in accordance with such terms and conditions, the terms of use and/or the applicable Order Forms.
   b. Expenses. Customer shall reimburse Testlio for all reasonable out-of-pocket expenses approved by Customer in writing (email is sufficient) and actually incurred by Testlio in performing the Managed Services.
   c. Taxes. All fees and other amounts paid 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 services provided under this Agreement. When Testlio has the legal obligation to collect such taxes, the appropriate amount shall be due upon invoice to Customer unless Customer provides Testlio with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Resources to be Provided by Customer. Customer shall provide to Testlio, at Customer’s cost and expense and in a timely manner, the following resources, and such other additional resources, as Testlio may from time to time reasonably request in connection with Testlio’s performance of the Test Services:
   a. Binary copies of the Customer App that is the subject of the Managed Services. With this, Customer offers a term license to the Customer App and any other Customer materials needed to perform the Managed Service;
   b. Qualified Customer personnel who will be designated by Customer to confer with Testlio in connection with the Managed Services;
   c. Access to Customer’s appropriate systems for mutually agreed upon utilization and/or integration; and
   d. Access to premises and workspace at Customer’s premises, if necessary, for performance of any portions of the Managed Services to be performed at Customer’s premises (as specified in an Order Form or mutually agreed to via email or other normal business communication).
8. Personnel. Personnel will at all times be considered employees or contractors of the party providing such personnel and will not for any purpose be considered employees or contractors of the other party. Each party shall assume full responsibility for the actions or inactions of the personnel it provides 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, provided that the delegating party shall remain responsible to the other party for the performance of the delegating party’s obligations. Neither party will solicit nor hire employees or contractors of the other party without express written permission.
9. Confidentiality
   a. 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, or in any other form) to the other party that is identified as confidential or proprietary, including without limitation Customer Apps. 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, 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. The receiving party will not disclose any Confidential Information of the other party except to the receiving party’s officers, directors, employees and contractors 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 to the extent necessary, provided that the receiving party shall, to the extent legally permissible, give the disclosing party prompt notice thereof.
   b. Residuals Right. “Residuals” means ideas, know-how, techniques, information and understandings retained in the unaided memory of Testlio’s employees and contractors as a result of their access to and use of the Confidential Information of Customer. Notwithstanding the confidentiality obligations of Testlio under this Agreement, Testlio has the right to use and exploit Residuals for any purpose, provided that nothing in this Agreement is intended to grant any license to Testlio under any trademark, copyright or patent of the Customer.
10. Publicity. Customer hereby consents to inclusion of its name and logo in customer lists that may be published as part of Testlio’s marketing and promotional efforts.
11. Term; Termination; Renewals.
    a. Term. This Agreement shall commence as of the Effective Date and shall continue in full force and effect indefinitely thereafter, subject to the right of either party to terminate this Agreement pursuant to the provisions of this Agreement.
    b. Termination. Either party may terminate any Order Form for material breach of such Order Form or this Agreement 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.
    c. 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 11(b) for Customer’s 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 Customer’s obligations to pay all prorated amounts owed per any Order Form in accordance with Section 2. Sections 11(c) (Effect of Termination), 13 (Limitation of Liability), 19 (Miscellaneous) and 20 (Notices) shall survive any expiration or termination of this Agreement. Notwithstanding any termination of this Agreement, the confidentiality obligations of the receiving party with respect to Confidential Information of the disclosing party shall continue to be governed by Section 9 for a period of two years after the receiving party has returned such Confidential Information to the disclosing party or destroyed such Confidential Information. Testlio will grant customer up to 30 days of additional platform access after termination for data access (“Wind Down Period”). After the wind down period, no additional access nor data rights will be granted.
    d. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one (1) year periods, unless either party gives the other party notice of non-renewal at least thirty (30) calendar days before the end of the relevant subscription term.
12. Warranties.
    a. 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 Customer within 90 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 to Customer amounts paid for non-conforming Managed Services.
    b. Disclaimer. EXCEPT AS SET FORTH IN SECTION 12(A), 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 WILL BE ERROR-FREE. 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.
    c. Customer warrants that they have the right to enter into this agreement and to grant whatever rights have been granted herein.
13. Limitation of Liability. TESTLIO’S TOTAL LIABILITY TO CUSTOMER 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 FROM WHICH THE CLAIM ORIGINATED. OTHER THAN CONFIDENTIALITY, OWNERSHIP, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER TESTLIO OR CUSTOMER 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) 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. ANY CLAIM BY CUSTOMER AGAINST TESTLIO RELATING TO THIS AGREEMENT MUST BE MADE IN WRITING AND PRESENTED TO TESTLIO WITHIN ONE YEAR AFTER THE DATE ON WHICH THE CUSTOMER RECEIVED THE MANAGED SERVICES OR DELIVERABLE(S) AT ISSUE.
14. Indemnity. You agree that you will be responsible for your use of 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 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 these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
15. Service Levels. Testlio will make commercially reasonable efforts to maintain 99.9% uptime for the Platform. Response times and any other service level agreements are specified in the Order Form. The company maintains the following holidays, excluding these days from normal business day responsibilities:
    ● Company-wide holidays: New Year’s Eve (December 31), New Year’s Day (January 1), Good Friday (April 19), Christmas Eve + Christmas Day + Day After Christmas (December 24-26)
    ● US team holidays: Memorial Day (last Monday in May), Independence Day (July 4), Labor Day (first Monday in September), Thanksgiving and Day After (fourth Thursday/Friday in November)
    ● European team (Estonian) holidays: Independence Day (February 24), Spring Day (May 1), Victory Day (June 23), Midsummer Day (June 24), Restoration Day (August 20)
16. 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 http://help.testlio.com/legal/testlio-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, these Terms.
17. Prohibited Conduct. By using the Platform you agree not to:
    a. enable users other than your employees (with valid company email addresses and credentials) to access the Platform for testing or other uses. Under Testlio licensing, only your employees, Testlio employees, or freelance members of the Testlio Network can hold the Tester role and perform testing duties;
    b. violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
    c. post, upload, or distribute 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;
    d. 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 or otherwise attempting to discover the source code of the Platform or any part thereof except to the extent that such activity is expressly permitted by applicable law;
    e. 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;
    f. 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;
    g. sell or otherwise transfer the access granted herein or any Materials (as defined in Section 4) or any right or ability to view, access, or use any Materials; or
    h. attempt to do any of the foregoing in this Section 17, or assist or permit any persons in engaging in any of the activities described in this Section 17.
18. 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, fires, floods, wars, civil disturbances, 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.
19. Miscellaneous. 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. Except as expressly set forth herein, Testlio grants Customer no rights, title or interest in or to any intellectual property rights of Testlio, whether or not developed under this Agreement. This Agreement constitutes the entire agreement between Testlio and Customer 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. This Agreement will be governed by and interpreted in accordance with the laws the State of California, without regard to its choice of laws principles, and each party irrevocably consents to the exclusive jurisdiction and venue of the federal courts of the Northern District of California. 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. This Agreement shall bind and inure to the benefit of each party’s successors and permitted assigns. Each party has the right to assign this Agreement to an acquiring party of its company and/or material assets. Except by a written instrument, signed by the party against whom enforcement is sought, no breach may be waived, either by action or inaction. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument.
20. Contact Information and Notices. The Managed Service hereunder is offered by Testlio Inc., located at 345 California Avenue, Palo Alto, CA 94306. You may contact us by sending correspondence to the foregoing address or by emailing us at [email protected]. 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, or in U.S. mail, postage prepaid, certified or registered, with return receipt requested. In addition, Testlio may provide any notice to Customer 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.