Last updated on October 10, 2017
Thank you for your interest in obtaining certain test services from Testlio Inc. (“Testlio”) in connection with your software applications (“Customer Apps”). This Full Service Test Agreement, and any additional terms incorporated by reference herein (collectively, the “Agreement”), govern your access to, use of, or receipt of such test 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 test 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 CLICKING “I ACCEPT,” CREATING AN ACCOUNT, REGISTERING TO RECEIVE OR USE ANY TEST SERVICES, SUBMITTING A PROJECT REQUEST FOR SUCH 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. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT CREATE AN ACCOUNT, REGISTER TO RECEIVE OR USE ANY TEST SERVICES, SUBMIT A PROJECT REQUEST FOR SUCH SERVICES, OR OTHERWISE OBTAIN, ACCESS, OR USE ANY SUCH SERVICES. THE SERVICES ARE AVAILABLE ONLY TO PERSONS WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. IF YOU WISH TO USE OR OBTAIN ANY SERVICES IN YOUR CAPACITY AS AN EMPLOYEE, YOU MUST HAVE THE ABILITY TO BIND YOUR EMPLOYER. WITHOUT LIMITING THE FOREGOING, THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO CANNOT FORM LEGALLY BINDING CONTRACTS UNDER THE APPLICABLE LAW. IF YOU DO NOT QUALIFY TO OBTAIN, RECEIVE, ACCESS, OR USE THE SERVICES OR OTHERWISE ENTER INTO THIS AGREEMENT, PLEASE DO NOT ATTEMPT TO CREATE AN ACCOUNT, REGISTER TO RECEIVE OR USE ANY SERVICES, OR OTHERWISE OBTAIN, RECEIVE, ACCESS, OR USE ANY SERVICES.
Notwithstanding the foregoing, if you and Testlio have entered into a separate signed agreement with respect to your use of, receipt of, or access to any test services, the terms and conditions of such agreement will govern such test services, and you will not be bound by, and your access to and use of such test services will not be subject to, this Agreement.
Test Services. Testlio will provide test services to Customer as described in one or more test plans provided by Testlio to Customer, including without limitation on or through the online portal or website available through the Site or other website identified by Testlio (the “Web Portal”), and accepted by Customer in accordance with this Agreement (each, a “Finalized Test Plan”), each of which will be subject to the terms and conditions of this Agreement. The test services described in the Finalized Test Plan shall be referred to as the “Test Services.” Customer will pay Testlio for Test Services in accordance with the Finalized Test Plan and this Agreement. Customer may submit project requests for test services on or through the Web Portal, which will be subject to acceptance by Testlio.
a. Each test plan may include the following: (i) the Customer Apps that are the subject of the test services; (ii) a description of the test services; (iii) a description of the deliverables, if any, to be provided by Testlio to Customer in connection with the test services (“Deliverables”); and (iv) the fees to be paid by Customer for the test services.
b. “Specifications” mean any test plan specifications provided in writing by Customer to Testlio. Customer will have three (3) business days (“Acceptance Period”), or such longer period as may be mutually agreed upon by the parties in writing, in which to determine whether the test plan materially conforms to any applicable Specifications. In the event that the test plan does not materially conform to the applicable Specifications, Customer may reject such test plan by providing notice to Testlio during the Acceptance Period (“Rejection Notice”). Such Rejection Notice will describe in reasonable detail the reasons for Customer’s rejection of the test plan. Testlio will remedy any material nonconformance of the test plan described in such Rejection Notice at no additional charge by Testlio to Customer. If Testlio does not receive a Rejection Notice during the Acceptance Period, the test plan delivered by Testlio to Customer will be deemed accepted by Customer as the Finalized Test Plan.
c. Each Finalized Test Plan is incorporated by reference into this Agreement. In the event that any provision in any Finalized Test Plan conflicts with any provision of this Agreement, then this Agreement shall be deemed to control except to the extent that a Finalized Test Plan expressly references the section of this Agreement that it intends to amend. Any such amendment shall apply only for the purposes of such Finalized Test Plan.
d. Any changes to the scope of the Finalized Test Plan, including without limitation the Test Services or the Deliverables, shall be mutually agreed upon in a writing executed by an authorized representative of each party (“Change Order”). The parties acknowledge that such changes may affect both the payment and any schedule set forth in the Finalized Test Plan. At a minimum, each Change Order shall document (i) the change requested and its effect on the Test Services and Deliverables, (ii) any adjustments to any schedule to the extent specified in the Finalized Test Plan, and (iii) any increase or decrease in the fees.
Deliverables. Customer may use any test plan under this Agreement and any Deliverables for Customer’s internal use only. Customer shall not distribute or provide any test plan under this Agreement or Deliverables to third parties.
Assignment of Deliverables. In the process of performing this Agreement, Testlio may create automation test scripts and test plans specifically for Customer that are unique to Customer. Testlio agrees to transfer and assign, and does hereby transfer and assign, to Customer such deliverables developed for Customer by Testlio under this Agreement.
a. Payment. All amounts payable by Customer to Testlio shall be paid by wire transfer in accordance with the wire transfer instructions provided by Testlio to Customer from time to time.
i. Test Services Fees. Unless otherwise specified in a Finalized Test Plan, Customer will pay the fees for the Test Services set forth in a Finalized Test Plan immediately upon acceptance of the Finalized Test Plan by the Parties, prior to the commencement of such Test Services.
b. Expenses. Customer shall reimburse Testlio for all reasonable out-of-pocket expenses approved by Customer in writing (email is sufficient) or on or through the Web Portal actually incurred by Testlio in performing the Test 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.
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. copies of the Customer App that is the subject of the Test Services;
b. qualified Customer personnel who will be designated by Customer to confer with Testlio in connection with the Test Services; and
c. access to Customer’s premises and appropriate systems and workspace at Customer’s premises as necessary for performance of any portions of the Test Services to be performed at Customer’s premises.
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.
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 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.
Publicity. Testlio has the right to include Customer’s name and trademarks in Testlio’s website and collateral for marketing purposes, with Customer’s approval; provided that Testlio will not use Customer’s clients’ names or trademarks for any marketing purposes.
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.
i. Either party may terminate this Agreement for any reason or for no reason upon thirty (30) days’ written notice to the other party.
ii. Either party may terminate any Finalized Test Plan for material breach of such Finalized Test Plan 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 sixty (60) days of such notice.
c. Effect of Termination. No expiration or termination of this Agreement will affect any Finalized Test Plan that has not been fully performed; provided, however, if Testlio terminates this Agreement pursuant to Section 9(b)(ii) for Customer’s failure to pay amounts due to Testlio, then Testlio may elect to immediately cease providing the corresponding Test Services. Without limiting the foregoing, no expiration or termination of this Agreement will affect Customer’s obligations to pay all amounts incurred under any Finalized Test Plan in accordance with Section 4. Sections 9(c) (Effect of Termination), 11 (Limitation of Liability), 12 (Notices), and 15 (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 7 for a period of one year after the receiving party has returned such Confidential Information to the disclosing party or destroyed such Confidential Information.
a. Test Services. Testlio warrants that the Test 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 Test Services at issue, shall, at its own option, either (i) re-perform the Test Services to conform to this standard; or (ii) refund to Customer amounts paid for non-conforming Test Services.
b. Disclaimer. EXCEPT AS SET FORTH IN SECTION 10(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 TEST 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 TEST SERVICES OR DELIVERABLES, INCLUDING WITHOUT LIMITATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
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 FINALIZED TEST PLAN FROM WHICH THE CLAIM ORIGINATED. 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 EARLIER OF: (A) THE DATE ON WHICH THE CUSTOMER RECEIVED THE DELIVERABLE(S) AT ISSUE; OR (B) THE DATE ON WHICH TESTLIO COMPLETED PERFORMANCE OF THE TEST SERVICES AT ISSUE.
Notices. 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, return receipt requested, and addressed as follows:
If to Testlio:
303 2nd Street, Suite 460
San Francisco, CA 94107
Attention: Marko Kruustük
If to Tester: Via information provided in the Test Plan or Web Portal
In addition, Testlio may provide any notice to Customer on or through the Web Portal 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 Web Portal.
Force Majeure. Except for 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.
Modifications. Testlio reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Customer should check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Customer’s rights or obligations, Testlio will make reasonable efforts to notify Customer of such change. Testlio may provide notice through a pop-up or banner within the Web Portal or Site, by sending an email to any address Customer may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Agreement materially modifies Customer’s rights or obligations, Testlio may require Customer to provide consent by accepting the changed Agreement. If Testlio requires Customer’s acceptance of the changed Agreement, changes are effective only after Customer’s acceptance. If Customer does not accept the changed Agreement, Testlio may terminate the Agreement and/or suspend Customer’s 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.
- 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. Testlio grants no right, 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 non-exclusive jurisdiction and venue of the courts of the State 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. Testlio has the right to assign this Agreement. 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.