Last updated on April 26, 2017
Thank you for your interest in performing certain testing services on behalf of Testlio Inc. (“Testlio”) for its customer(s). This Tester Services Agreement, and any additional terms incorporated by reference herein (collectively, the “Agreement”), govern your performance of the Services (as defined below). The terms “Tester,” “you,” and “your” refer to you, the individual creating an account, registering to become a tester for Testlio, and/or agreeing to provide or perform the Services. Testlio and Tester 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 TESTER, 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 TESTER, OR OTHERWISE AGREE TO PROVIDE OR PERFORM THE SERVICES. THE SERVICES MAY ONLY BE PROVIDED OR PERFORMED BY NATURAL PERSONS 18 YEARS OF AGE OR OLDER WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER THE APPLICABLE LAW. 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 TESTER, OR OTHERWISE AGREE TO PROVIDE OR PERFORM THE SERVICES.
1.1. “Confidential Information” has the meaning set forth in Section 6.1.
1.2. “Customer” means a customer of Testlio for which the Services are being performed by Tester on behalf of Testlio.
1.3. “Deliverables” means the specific items to be provided by Tester, pursuant to and as described in a Project Schedule.
1.4. “Project” means a project, and the Services to be provided by Tester for such a project and each Test Run therein, as identified and described by Testlio from time to time in a Project Schedule.
1.5. “Project Schedule” means, for each Project, a description provided or made available by Testlio on or through the Web Portal and/or via email that sets forth the Services to be provided by Tester for such Project and any specifications, Deliverables, time schedule for completion of the Services and delivery of the Deliverables, or other requirements for such Project.
1.6. “Services” means the services to be provided by Tester under this Agreement, pursuant to and as described in a Project Schedule.
1.7. “Test Run” means, within each Project, each test run for which Tester will provide Services in accordance with the applicable test plan, as described in the applicable Project Schedule.
1.8. “Web Portal” 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 Tester may access and use to view and manage Tester’s Projects and any other Services to be provided by Tester under this Agreement.
2.1. Services. The Tester will perform the Services, including to deliver any Deliverables and complete any and all Projects, described in each Project Schedule, in accordance with the terms and conditions of this Agreement and the applicable Project Schedule. All incidental services, products, materials and tasks necessary to provide the Services and Deliverables shall be provided at no additional cost to Testlio unless otherwise specified in a Project Schedule. Each Project Schedule is incorporated into this Agreement by reference.
2.2. Changes. Testlio may at any time request through the Web Portal changes to a Project Schedule (“Change Request”), including changes that affect the Services or Deliverables and changes to the delivery schedule. Upon receiving such written request,Tester 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. The Tester will respond to any Change Request within two (2) business days of Testlio’s provision of the Change Request to Tester. Tester’s response will describe all changes to the applicable Project Schedule necessary in order to accommodate the Change Request. The Tester will use all commercially reasonable efforts to accommodate each Change Request.
2.3. Acceptance. The Services or Deliverables must meet a milestone or completion dates, specifications and acceptance criteria set forth in each Project Schedule (“Acceptance Criteria”). Testlio, with Tester’s 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 Project Schedule, or (ii) twenty (20) business days. Testlio may reject any Services or Deliverables that do not conform to the applicable Acceptance Criteria. Tester will promptly remedy such nonconformance at no additional cost to Testlio. If the Tester does not remedy any nonconforming Services or Deliverables within thirty (30) days, or another period of time mutually agreed upon by the Parties in a Project Schedule, after Testlio’s notice of rejection, in addition to all other remedies available to Testlio: (a) Testlio may immediately terminate the applicable Project for cause, (b) Testlio will have no obligation to pay for such Services or Deliverables, expenses, or materials expended by Tester in connection with the creation or delivery of such Services or Deliverables, and (c) Testlio may require Tester to refund to Testlio within thirty (30) days of Testlio’s written request for payment, all amounts previously paid by Testlio to Tester in connection with creating or delivering such Services or Deliverables.
2.4. Coordination. Testlio will reasonably cooperate with Tester and timely complete tasks for which it is responsible as set forth under this Agreement and in any applicable Project Schedule. Testlio’s failure to perform such tasks will not be grounds for termination by Tester. Unless authorized by Testlio in writing, Tester will not contact any Customer in connection with this Agreement, the Services or Deliverables. If any Customer contacts Tester in connection with this Agreement, the Services or Deliverables, and Testlio has not authorized Tester to contact such Customer regarding the subject matter of Customer’s communication, Tester immediately shall refer such Customer to Testlio.
APPLICABILITY TO PAST ACTIVITIES
Tester agrees that if and to the extent that Tester provided any services or made efforts on behalf of or for the benefit of Testlio, or related to the current or prospective business of Testlio in anticipation of Tester’s involvement with Testlio, that would have been “Services” if performed during the Term of this Agreement (the “Prior Services Period”) and to the extent that during the Prior Services Period: (i) Tester received access to any information from or on behalf of Testlio that would have been “Confidential Information” (as defined below) if Tester received access to such information during the Term of this Agreement; or (ii) Tester (a) conceived, created, authored, invented, developed or reduced to practice any item (including any intellectual property rights with respect thereto) on behalf of or for the benefit of Testlio, or related to the current or prospective business of Testlio in anticipation of Tester’s involvement with Testlio, that would have been an “Assigned Deliverable” (as defined below) if conceived, created, authored, invented, developed or reduced to practice during the Term of this Agreement; or (b) incorporated into any such item any pre-existing or independently developed technology that would have been “Tester Materials” (as defined below) if incorporated into such item during the Term of this Agreement; then any such information shall be deemed “Confidential Information” hereunder and any such item shall be deemed an “Assigned Deliverable” or “Tester Materials” hereunder, and this Agreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented, developed or reduced to practice during the Term of this Agreement. Tester further acknowledges that Tester has been fully compensated for all services provided during any such Prior Services Period.
TESTER OBLIGATIONS. In addition to Tester’s other obligations under this Agreement, Tester has the following obligations:
4.1. Timeliness. The Tester will timely and satisfactorily perform all of its obligations under this Agreement and each Project Schedule and will maintain a staff adequate to meet such obligations in high quality and timely manner. Tester understands that full payment is for timely and compliant performance under the applicable Project Schedule.
4.2. Feedback. Tester 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 Project and/or the Services (“Feedback”) in a timely manner as set forth in the applicable Project Schedule or upon request by Testlio.
4.3. Facility Rules. The Tester will comply with the Testlio facility rules while at the Testlio facilities. Tester also agrees that Tester 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.
4.4. Risk of Loss. Tester shall bear all risk of personal injury, and loss and damage to their personal property and equipment, unless caused by the gross negligence or willful misconduct of Testlio.
COMPENSATION AND BILLING.
5.1. Fees. During the Term of this Agreement, Testlio agrees to compensate Tester for its Services and Deliverables after a Project is completed, and all Services and Deliverables for such Project are completed and delivered by Tester in accordance with this Agreement and the applicable Project Schedule and accepted by the applicable Customer, in accordance with the fee structure set out in the applicable Project Schedule.
5.2. Taxes. Tester 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 Tester’s 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.
6.1. 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 therefor, customer lists and customers (including, but not limited to, customers of Testlio on whom Tester called or with whom Tester became acquainted during the term of this Agreement), 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. Notwithstanding the foregoing, Confidential Information shall not include any such information which Tester can establish (i) was publicly known or made generally available prior to the time of disclosure to Tester; (ii) becomes publicly known or made generally available after disclosure to Tester through no wrongful action or inaction of Tester; or (iii) is in the rightful possession of Tester, without confidentiality obligations, at the time of disclosure as shown by Tester’s 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.
6.2. Protection of Confidential Information. The receiving Party will protect the disclosing Party’s Confidential Information at all times and in the same manner as the receiving Party protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. The receiving Party may disclose or permit the disclosure of Confidential Information of the disclosing Party to the receiving Party’s directors, officers, employees, agents, and contractors, in each case, who are obligated to maintain the confidential nature of such Confidential Information and who need to know such Confidential Information for purposes of performing this Agreement. The receiving Party may use the Confidential Information of the disclosing Party solely for the exercise of its rights and satisfaction of its obligations under this Agreement.
6.3. Compelled Disclosures. If the receiving Party becomes legally compelled to disclose any Confidential Information of the disclosing Party, the receiving Party may furnish only that portion of the Confidential Information that is legally required to be disclosed; provided, however, the receiving Party will provide the disclosing Party prompt written notice, if legally permissible, and will assist the disclosing Party in seeking a protective order or another appropriate remedy.
6.4. Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement, the receiving Party will, at the instruction of the disclosing Party, either destroy or return all Confidential Information of the disclosing Party in the possession or control of the receiving Party.
6.5. Confidentiality of Agreement. Each Party agrees that the provisions and the existence of this Agreement and any and all Project Schedules will be treated as the other Party's Confidential Information. Each Party may disclose the provisions of this Agreement and any and all Project Schedules pursuant to Sections 6.2 and 6.3, 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.
7.1. Tester Materials. The Tester will retain all right, title and interest, including all intellectual property rights, in and to all technology developed by Tester prior to the Effective Date of this Agreement or developed by Tester independently of any obligations under this Agreement or a Project Schedule (collectively, “Tester Materials”).
7.2. Assigned Deliverables.
(a) Except for Tester Materials or as otherwise expressly agreed upon between the Parties in an applicable Project Schedule, the Parties agree that all Deliverables and any and all Feedback (“Assigned Deliverables”) will be the sole and exclusive property of Testlio and will be considered “works made for hire.” Tester hereby assigns all right, title and interest, including all intellectual property rights, in and to all Assigned Deliverables to Testlio. Tester waives any moral rights in the Assigned Deliverables.
(b) Tester agrees to render, at Testlio’s expense for any of Tester’s 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 7.2.
(c) Prior to incorporating any Tester Materials or third-party materials in any Deliverable or Feedback, Tester shall obtain Testlio’s express written approval therefor. To the extent that Tester incorporates any Tester Materials into the Assigned Deliverables, Tester hereby grants to Testlio a perpetual, royalty-free, non-exclusive, nontransferable license to copy, distribute, create derivative works, perform, display, make, use, sell, offer to sell and import such Tester Materials with the Assigned Deliverables. Testlio has the right to sublicense its license under this Section 7.2(c).
7.3. 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.
WARRANTIES. Tester represents and warrants as follows:
8.1. 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.
8.2. Laws and Regulations. Tester’s performance of Services and delivery of Deliverables pursuant to this Agreement or any Project Schedule do not and will not violate any applicable law, rule, or regulation.
8.3. Industry Standards. The Tester will deliver the Services in a professional and workmanlike manner in accordance with industry standards.
8.4. Viruses. Tester has not introduced any viruses or harmful or disabling code into any of the Deliverables, and the Deliverables will not permit the introduction of any viruses or harmful or disabling code into any systems or devices.
8.5. Services and Deliverables. The Services and Deliverables will conform to the applicable performance standards, service levels, specifications, and Acceptance Criteria, set forth in the applicable Project Schedule. Testlio may notify Tester of any nonconformance via email and/or the Web Portal and Tester must respond to any such notification and remedy any such nonconformance in accordance with Section 2.3 of this Agreement and the applicable Project Schedule and notification.
8.6. IP Infringement. Tester warrants that 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.
8.7. No Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8 OR THE APPLICABLE PROJECT SCHEDULE, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
9.1. Tester Indemnification.
(a) IP Infringement. Tester will indemnify, defend, and hold harmless Testlio, and their respective directors, partners, officers, employees, representatives, and agents (collectively, the “Indemnitees”) from and against any and all claims, liabilities, losses, reasonable and necessary expenses actually incurred (including reasonable attorneys’ fees), fines, penalties, taxes or damages (collectively “Liabilities”) asserted against Testlio 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 Tester’s 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, Tester may within a reasonable time, at its 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 a Project Schedule), 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 Tester for such item and the Services provided in connection with such item. Testlio, in addition, will have a right against Tester for any direct damages incurred by Testlio, and the reduction in value to Testlio or other Services or Deliverables provided by Tester based upon the removal of the infringing item.
(b) Other. Tester will indemnify, defend and hold harmless the Indemnitees from and against any and all Liabilities incurred by or asserted against Testlio by third parties relating to or arising out of (i) any claim that Tester or the Services or Deliverables provided by Tester or other third parties it utilizes to provide the Services under this Agreement has caused bodily injury (including death), has damaged real, tangible, or intangible property, (ii) breach of any of Tester’s warranties in this Agreement or any Project Schedule, (iii) violation by Tester or its suppliers or any third parties it utilizes to provide the Services of any governmental laws, rules, ordinances, or regulations, or (iv) any claim of nonpayment by or on behalf of any third parties Tester utilizes to provide the Services.
9.2. Notice. In the event of any Liabilities for which Testlio is seeking indemnification from Tester, Testlio will timely notify Tester of such Liabilities, give Tester the right to control and direct the defense (at Tester’s sole expense) and any settlement of any such claim, and give reasonable cooperation to Tester for the defense of same. Notwithstanding anything to the contrary above, Tester 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.
LIMITATIONS OF LIABILITY. EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9, OR FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS OF SECTION 6, 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 10 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.
TERM; BREACH, SUSPENSION, AND TERMINATION.
11.1. Term. The term of this Agreement will continue until terminated in accordance with this Section 11 (“Term”). The term of each Project Schedule will begin and end on the dates contained in such a Project Schedule.
11.2. Termination for Convenience.
(a) For Agreement. Either party may terminate this Agreement for any or no reason upon thirty (30) days’ advance written notice to the other, provided that Tester may terminate this Agreement pursuant to Section 11.2(a) only if there is no active or current uncompleted Test Run for any Project for which Tester is required to provide Services pursuant to any outstanding Project Schedule.
(b) For Project Schedule. Unless this provision is modified in an applicable Project Schedule, Testlio may terminate for convenience any Project Schedule, for any reason or no reason, by providing Tester with at least ten (10) days’ prior written notice (the “Cancellation Notice”) of its intent to terminate the applicable Project Schedule and such notice shall contain the last date Tester shall perform the Services (“Project Schedule Termination Date”). Within thirty (30) days after the Project Schedule Termination Date, Testlio will pay Tester all authorized fees (subject to acceptance of Deliverables in accordance with Section 3.5) and expenses that have been incurred in connection with the performance of the Services and delivery of Deliverables in accordance with this Agreement and the applicable Project Schedule through the Project Schedule Termination Date. For partially completed milestone Deliverables or for partial periods of performance for which milestone or periodic payments are not yet due on the date of termination, Testlio will pay Tester a pro-rata share of payment based upon the portion of the Services or Deliverables completed by Tester as of the Project Schedule Termination Date.
11.3. Termination for Cause.
(a) By Tester. The Tester may terminate any outstanding Project Schedule upon written notice to Testlio in the event that Testlio materially breaches this Agreement or an applicable Project Schedule, and such breach remains uncured thirty (30) days after notice of such breach is received by Testlio. Upon any such termination by Tester due to an uncured breach by Testlio, Tester must use commercially reasonable efforts to mitigate its damages. The Tester will be paid, within thirty (30) days after the effective date of termination, the remaining fees and authorized expenses that have been incurred or earned in connection with the performance of the Services and delivery of the Deliverables through the effective date of such termination.
(b) By Testlio. Testlio may terminate any outstanding Project Schedule upon written notice to the Tester if (i) Tester materially breaches this Agreement or an applicable Project Schedule and such breach remains uncured thirty (30) days after notice of such breach from Testlio, or (ii) Tester commits more than three (3) breaches of a material term of this Agreement or applicable Project Schedule(s) during any rolling twelve (12) month period, regardless of whether or not Tester has cured such breaches to Testlio’s reasonable satisfaction. Upon Testlio’s termination of the Agreement pursuant to this Section 11.3(b), Tester will be paid, within thirty (30) days after the effective date of termination, the reasonable value to Testlio, in good faith, of the earned fees and authorized expenses which have been incurred or earned for the Services performed and Deliverables delivered and accepted in accordance with this Agreement and the applicable Project Schedule through the effective date of such termination, but reduced by the reduction in value to Testlio of any related Services already paid for by Testlio. In addition, in the event Testlio has prepaid for any Deliverables or Services that have not been performed, Tester will refund within thirty (30) days any amount due to Testlio if it exceeds any amount owed by Testlio to Tester.
11.4. Survival. Sections 1, 3, 5.2, 6, 7.1, 7.2, 9, 10, 11.2 through 11.4, and 12 through 15 will survive any expiration or termination of this Agreement.
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.
303 2nd Street, Suite 460
San Francisco, CA 94107
Attention: Kristel Viidik
If to Tester:
Via information provided in the Project Schedule or Web Portal.
In addition, Testlio may provide any notice to Tester 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.
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.
13.1. Governing Law. This Agreement will be interpreted and enforced according to the laws of the State of California, 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 San Francisco, California, 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 California for the purpose of litigating all such disputes.
ADDITIONAL TERMS; MODIFICATIONS.
14.2. Modifications. Testlio reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. The Tester should check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Tester’s rights or obligations, Testlio will make reasonable efforts to notify Tester of such change. Testlio may provide notice through a pop-up or banner within the Web Portal or Testlio website, by sending an email to any address Tester may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Agreement materially modifies Tester’s rights or obligations, Testlio may require Tester to provide consent by accepting the changed Agreement. If Testlio requires Tester’s acceptance of the changed Agreement, changes are effective only after Tester’s acceptance. If Tester does not accept the changed Agreement, Testlio may terminate the Agreement and/or suspend Tester’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.
15.1. Assignment. Tester shall not assign this Agreement, or assign, delegate, or subcontract any of its 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 the consent of Tester. 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. Tester and Testlio agree that this Agreement contains the entire agreement among the Parties with respect to the Deliverables and the provision of the Services, 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 Contractor. Tester is performing the Services as an independent contractor, and thus is not, nor may represent itself as, an employee, partner, joint venturer, 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 a Project Schedule is held to be invalid, void or unenforceable, the remainder of this Agreement or a Project Schedule 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.