Managed Services Agreement

EFFECTIVE DAY 8 June 2023

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 Services 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 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 you with the Managed Services 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). You will pay Testlio for Managed Services in accordance with all Order Forms (including any Exhibits or Amendments).

2. Order Forms.

2.1. 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 in connection with the Managed Services (“Deliverables”); (iv) the fees to be paid by you for the Managed Services; (v) the roles and titles from Testlio and the freelancer network assigned to the Managed Services; (vi) the client services provided; (vii) the number of devices covered; (viii) the primary business hours; (ix) any localization languages and/or locations supported; (x) any automated testing services provided; (xi) the up to hours and other units provided.

2.2. 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 (“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.

You may use any Managed Services or Deliverables under this Agreement for Customer Apps only. You shall not distribute or provide any Managed Services or Deliverables under this Agreement to third parties.

4. Ownership.

4.1. Testlio Proprietary Rights. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software (whether owned by Testlio or a third party), services, and all other elements of the Platform and Managed Services provided by Testlio, together with any modifications or derivatives thereof of every nature and kind (the “Materials”), are protected by all relevant intellectual property rights and applicable laws. You acknowledge and agree that, as between Testlio and you, Testlio and its licensors own all right, title and interest (including all intellectual property rights) in and to the Managed Services, Platform, and Materials; and any suggestions, ideas, enhancement requests, feedback, recommendations, or any other information provided by you or any other party relating to such Materials (“Feedback”). Except as expressly authorized by Testlio below, you may not make use of the Managed Services, Platform, or Materials. Testlio reserves all rights to the Managed Services, Platform, and Materials not granted expressly in this Agreement.

4.2. Your License to the Testlio Platform. Testlio hereby grants you a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable, limited, royalty-free license to access and use the Materials only in connection with your permitted use for the purpose of the receipt of the Managed Services under this Agreement. For the avoidance of doubt, you shall not provide access to Testlio’s Platform to any third party, without Testlio’s prior written consent, which may be withheld at Testlio’s reasonable discretion. You acknowledge that the Materials may contain programming, scripts, modules, components, or other items that were developed using open source code, or codes provided by third parties. By obtaining, accessing, downloading, and/or using these open source code or third parties codes, you agree that you understand and will comply with the terms and conditions of the applicable codes, in addition to the terms of this Agreement.

4.3. Customer IP. “Customer IP” means all data you provide to Testlio, together with any modifications or derivatives thereof of every nature and kind. You own all right, title, and interest 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.

4.4. 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.

4.5. Residuals Rights. “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 performance of the Services. 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. Notwithstanding any provision to the contrary, you agree that Testlio has the right to anonymize and aggregate your data with other data and leverage anonymous learnings and insights to develop, provide, and improve Testlio products and services.

4.6. Use of Your Data for Artificial Intelligence. Notwithstanding Section 4.5 above, Testlio may use your data and information collected during the performance of the Services to train, develop, improve, and deliver artificial intelligence and machine learning models and services. Such data will be used solely for the purpose of our own models and services, and will not be shared with any third parties for any other purpose. Testlio hereby represents that this use will not identify any personal data, and that the results of such modeling will be used internally solely to improve the quality and efficiency of the Services.

5. Payment. Expenses.

5.1. Payment. All amounts payable by you 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. Testlio shall have the option to charge interest on invoices which remain unpaid for more than thirty (30) days after the original due date. Testlio would apply a rate of 1% a month, or the highest rate allowed by law, or a lower rate at our discretion, whichever is less. Should your invoices remain unpaid, Testlio will have the right to suspend performance 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 any costs of legal assistance specific to collections proceedings, will be at your expense. If you have 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), you acknowledge and agree that such additional services, content, features, tools, or functionality may be governed by separate terms and conditions, and you agree to pay any and all applicable fees in accordance with such terms and conditions, the terms of use and/or the applicable Order Forms.

5.2. Expenses. You shall reimburse Testlio for all reasonable out-of-pocket expenses approved by you in writing (email is sufficient) and actually incurred by Testlio in performing the Managed Services.

5.3. 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 unless you provide Testlio with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Resources to be Provided by You.

You shall provide to Testlio, at your 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 Managed Services:

6.1. Binary copies of the Customer App that is the subject of the Managed Services. With this, you offer a term license to the Customer App and any other materials needed to perform the Managed Service;

6.2. Qualified personnel who will be designated by you to confer with Testlio in connection with the Managed Services;

6.3. Access to your appropriate systems for mutually agreed upon utilization and/or integration; and

6.4. Access to premises and workspace at your premises, if necessary, for performance of any portions of the Managed Services to be performed at your premises (as specified in an Order Form or mutually agreed to via email or other normal business communication).

7. Personnel.

“Personnel” will at all times be considered employees, contractors, or freelancers of the Party providing such Personnel and will not for any purpose be considered Personnel 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, offer work, employ, hire, or contract with, directly or indirectly, any of the other Party’s Personnel without prior written permission of the other Party. This non-solicitation will remain in effect during the term of this Agreement and 6 months after such Personnel ceases to be engaged in the Managed Services.

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, 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. 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, freelancers, 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.

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 or this Agreement, including Section 16, 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 2. Sections 10.3. (Effect of Termination), 12 (Limitation of Liability), and 18 (Miscellaneous) 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 8 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 you up to thirty (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.

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 WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, NOR THAT CONTENT WILL BE UNALTERED. 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. TESTLIO ALSO SPECIFICALLY DISCLAIMS ANY WARRANTIES ON THIRD PARTY CONTENT.

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.

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. 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, 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. 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 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 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 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 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 provided pursuant to this Agreement, constitutes a direct infringement of a third party 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 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 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 Managed Service alleged to be infringing; (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 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).

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, Client Services personnel will not generally be available when they have a local national holiday. Accordingly, days of limited Testlio resource availability where Order Form Service Levels will not be enforced are: New Year’s Day (January 1), Martin Luther King Day (third Monday in January), Estonian Independence Day (February 24), Good Friday (rotating dates), Estonian Spring Day (May 1), US Memorial Day (last Monday in May), Juneteenth (June 19th), Estonian Victory Day (June 23), Midsummer Day (June 24), US Independence Day (July 4), Estonian Restoration Day (August 20), US Labor Day (first Monday in September), US Veteran’s Day (November 11th), US Thanksgiving and Day After (fourth Thursday/Friday in November), 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”) during the first week of August each year. Order Form Service Levels will not be enforced during 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.

14.4. Rollover Hours. Unless otherwise noted, to the extent you engage in an annual Subscription with monthly Services hours, then you are entitled to rollover unused hours of no more than 20% of the total monthly contracted hours. 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; 3) to qualify for rollover, you must be in a current contract term and in good standing, including all invoices being paid on time.

14.5. Other Service Levels. Any other service levels specified in the Order Form.

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://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, this Agreement.

16. Prohibited Conduct.

You agree not to:

16.1. Build, copy, or create a competitive product or service; nor create a competing set of freelancer or independent contractor experiences or services. For avoidance of doubt, any freelancer or independent contractors using the Platform must be sourced from Testlio;

16.2. Use the Managed Services for any illegal purpose, or in violation of any local, state, national, or international law;

16.3. Violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;

16.4. 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;

16.5. 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;

16.6. 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;

16.7. 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;

16.8. 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

16.9. Attempt to do any of the foregoing in this Section 16, or assist or permit any persons in engaging in any of the activities described in this Section 16.

17. 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, 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.

18. Miscellaneous.

18.1. 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.

18.2. Assignment. Each Party has the right to assign this Agreement to an acquiring party of its company and/or material assets.

18.3. 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.

18.4. Disputes. Governing Law. 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 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.

18.5. Arbitration. Any dispute, controversy, or claim arising out of, relating to, involving, or having connection with this Agreement, including any question regarding the validity, interpretation, scope, performance, or enforceability of this dispute resolution provision, will be exclusively and finally settled by arbitration in accordance with the Commercial Arbitration Rules then in effect of the American Association Arbitration (“AAA“). Any arbitration will be conducted on an individual, rather than class-wide basis. The arbitration will be conducted in the Northern District of California, California, unless the Parties agree on another location, by three arbitrators, with each Party selecting one arbitrator and the third selected by the AAA. All decisions, rulings and awards of the arbitral panel will be made pursuant to majority vote of the three arbitrators and will be binding. The award will be in accordance with the applicable law, will be in writing, and will state reasons upon which it is based. The arbitrators will have no power to modify the terms of this Agreement. If Arbitration is required due to your non-payment, all costs and fees -including legal fees- related to such arbitration shall be borne by you.

18.6. 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.

18.7. 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.

18.8. 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.

18.9. Contact Information and Notices. The Managed Service hereunder is offered by Testlio, Inc. 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, 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.

19. Previous MSA Versions.

2022 MSA
2021 MSA