Terms of Service

1. Definitions

Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth below:

1.1 "Authorized User" means an employee or contractor whom Client has authorized to use the Platform.

1.2 "Documentation" means operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware lists, and other similar materials in hard copy or electronic form provided by Provider to Client relating to the Platform or Services, which may be updated from time to time upon notice to Client.

1.3 "Intellectual Property Rights" means patent rights (including applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.4 "Licensed Volume" means the limits, volume, or other measurement or conditions of permitted use for the Platform as set forth in an applicable Statement of Work.

1.5 "Platform" means QA Guardian's proprietary software testing and automation platform, including all related tools, services, APIs, SDKs, Playwright runner infrastructure, AI-powered analysis features, and associated services made available by Provider.

1.6 "Statement of Work" means a statement of work that Provider and Client may execute from time to time with details such as description of services, target milestones, and payment terms. Each Statement of Work expressly refers to this Agreement, forms a part of this Agreement, and is subject to the terms and conditions contained herein. A Statement of Work may be amended only by written agreement of the parties.

1.7 "CPI" means the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for All Urban Customers, seasonally adjusted U.S. city average: All items (1982–1984 = 100) as periodically published.

2. Access and Use of Services

2.1 Platform and Services. Subject to the terms and conditions of this Agreement, Provider hereby grants Client a limited, non-exclusive, non-transferable right to use the Platform during the Term, solely for Client's internal business purposes in accordance with, and subject to, the Licensed Volume and this Agreement. Provider agrees to provide implementation, testing, engineering, and support services as set forth in the applicable Statement of Work (the "Services"). Client will reasonably cooperate with Provider as needed to facilitate the Services, and Provider will not be liable for any delay or omission resulting from Client's failure to cooperate.

2.2 Platform Use Restrictions. Client will not, and will not permit any person to, directly or indirectly: (i) use the Platform beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Platform or Documentation; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Platform; (iv) frame, mirror, sell, resell, rent, or lease use of the Platform to any other person; (v) use the Platform in any manner that infringes, misappropriates, or otherwise violates any Intellectual Property Right or applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Platform or any data or content therein; (vii) access or search the Platform through any automated means (spiders, robots, crawlers, or similar data mining tools) other than software or features provided by Provider for that express purpose; or (viii) use the Platform, Documentation, or any other Provider Confidential Information for benchmarking or competitive analysis, or to develop, commercialize, license, or sell any product, service, or technology that could directly or indirectly compete with the Platform or Services.

2.3 Authorized Users. Client will not allow any person other than Authorized Users to use the Platform. Client ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Client is responsible for acts or omissions by Authorized Users. Client will require all Authorized Users to use reasonable means to secure usernames, passwords, hardware, and software used to access the Platform, and will promptly notify Provider if any credentials are compromised. Each account may only be accessed and used by the specific Authorized User for whom it was created.

2.4 Third-Party Services. Certain features within the Platform may allow Client to interface with, access, or use compatible third-party services, products, technology, and content ("Third-Party Services"). Provider does not provide any aspect of Third-Party Services and is not responsible for compatibility issues, errors, or bugs caused by Third-Party Services or any update thereto. Client is solely responsible for maintaining any Third-Party Services and obtaining any associated licenses and consents necessary for use in connection with the Platform.

3. Service Term

3.1 Term. This Agreement begins on the Effective Date set forth in an applicable Statement of Work and ends upon expiration of the last active Statement of Work (the "Term").

3.2 SOW Term. Unless expressly agreed otherwise in writing, each Statement of Work automatically renews for successive terms equal to the initial SOW Term; provided, however, that either party may terminate a Statement of Work by notifying the other party of its intent not to renew at least thirty (30) days prior to the end of the then-current SOW Term.

3.3 Termination for Cause. Either party may terminate this Agreement (and applicable Statements of Work) immediately upon written notice if the other party materially breaches this Agreement and such breach remains uncured thirty (30) days after the non-breaching party provides written notice of the breach. No termination or expiration will affect Client's obligation to pay all Fees that have become due or accrued through the effective date of termination or expiration.

3.4 Suspension. Provider reserves the right to suspend Client's access to the Platform immediately and without liability upon: (i) non-payment of any Fees due; (ii) Client's material breach of this Agreement; or (iii) Provider's reasonable determination that Client's use poses a security risk or legal liability to Provider or its other customers.

4. Fees and Payment

4.1 Payment Terms. Client will pay Provider the fees specified in the applicable Statement of Work ("Fees") on a non-refundable basis without offset or deduction. Client will pay all amounts set forth on any invoice no later than thirty (30) days after the invoice date. Payments must be made in U.S. dollars by check, credit card, ACH, wire transfer, or other method mutually agreed by the parties. Client is responsible for all sales, use, ad valorem, excise, and similar taxes and duties imposed on the amounts payable, other than taxes imposed on Provider's income. If Client fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law, and Provider may suspend access to the Platform and/or Services until all payments are made in full. Client will reimburse Provider for all reasonable costs and expenses (including reasonable attorneys' fees) incurred in collecting any late payments or interest.

4.2 Automatic Billing. If Client has enrolled in automatic billing, Provider will charge Client's selected payment method for any Fees on the applicable payment date, including applicable taxes. If Provider cannot charge Client's selected payment method for any reason, Client remains responsible for any uncollected amounts and Provider will attempt to charge the payment method again as Client updates its payment method information.

4.3 Renewal Adjustment. Unless otherwise agreed in the applicable Statement of Work or Provider notifies Client in writing at least sixty (60) days prior to the end of the then-current SOW Term, Fees for any renewal term will automatically increase by ten percent (10%) over the prior term's Fees.

5. Independent Contractor

Provider is an independent contractor at all times. Nothing in this Agreement shall be construed to imply or create a partnership, joint venture, or employer/employee relationship between Provider and Client, and neither party shall have legal authority to bind the other. Except as stipulated in an applicable Statement of Work, Provider retains the full right to control the manner in which the Services are carried out. Provider's personnel are not eligible for any benefit programs offered by Client. Provider is solely liable for all taxes resulting from its performance of the Services, and Client shall not be responsible for withholding taxes from invoices paid to Provider.

6. Confidentiality and Intellectual Property

6.1 Confidential Information. Each party agrees that, except with the prior written permission of the other party, it shall at all times keep confidential and not divulge, use, or permit the use of, or furnish or make accessible to anyone, any information, knowledge, or data concerning or relating to the business or intended business of the disclosing party to which the receiving party becomes privy by reason of this Agreement ("Confidential Information"); provided, however, that the receiving party may disclose such information (i) on a confidential basis to its attorneys, accountants, consultants, investors, and other professionals to the extent necessary to obtain their services, or (ii) as required by judicial decree or applicable law. Confidential Information of the disclosing party remains the sole and exclusive property of the disclosing party. Confidential Information does not include information that is: (A) rightfully known to the receiving party prior to receipt; (B) independently developed without use of or access to the disclosing party's Confidential Information; (C) permissibly acquired from a third party not under an obligation of confidence; or (D) publicly available through no breach of this Agreement.

6.2 Provider IP. As between the parties, Provider solely owns all right, title, and interest (including all Intellectual Property Rights) in and to: (i) the Platform; (ii) all tools, know-how, software, technologies, proprietary information, inventions, methods, models, algorithms, and other materials used by Provider in connection with the delivery of the Services or Platform; and (iii) all improvements, modifications, and derivative works of any of the foregoing (collectively, "Provider IP"). No rights are granted to Client (whether by implication, estoppel, exhaustion, or otherwise) other than as expressly set forth herein.

6.3 Feedback. Client or its representatives may from time to time provide Provider with suggestions, comments, or feedback regarding the Platform or Services ("Feedback"). Client hereby grants Provider a perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up license to use and exploit all Feedback in connection with Provider's business purposes, including testing, development, maintenance, and improvement of the Platform and Services.

6.4 Client Materials.

(a) As between the parties, Client solely owns all right, title, and interest (including all Intellectual Property Rights) in and to: (i) all software code (including test code and custom code) specifically created by Provider for Client in the performance of the Services, excluding any Provider IP therein (collectively, "Client Materials"); and (ii) all information, data, content, and other materials submitted, posted, collected, transmitted, or otherwise provided by or on behalf of Client through the Platform or to Provider in connection with the Services ("Client Provided Materials").

(b) Client Materials will be deemed a "work made for hire" on behalf of Client to the extent permitted by applicable law. To the extent any Client Materials are not deemed works-made-for-hire, Provider hereby assigns all right, title, and interest in such Client Materials to Client and agrees to execute all documents reasonably requested by Client to evidence such assignment, at Client's cost.

(c) To the extent that any Provider IP is incorporated into or necessary to use any Client Materials, Provider hereby grants Client a perpetual, non-exclusive, royalty-free, fully paid-up, sublicensable, transferable, worldwide license under such Provider IP solely to the extent necessary to use such Client Materials; provided that such Provider IP may only be used in connection with the Client Materials and not on a standalone basis.

(d) Client hereby grants Provider a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify the Client Provided Materials solely for the purpose of: (1) hosting, operating, improving, and providing the Platform and Services during the Term; and (2) Provider's internal business purposes, including the use of Client Provided Materials in aggregated and/or de-identified form for running analytics, machine learning, training AI models, and improving the Platform, Services, and Provider's other offerings — during the Term and thereafter. Client represents and warrants that it has obtained and will maintain all consents necessary to provide Client Provided Materials to Provider in connection with the Services.

7. Representations and Warranties

7.1 Provider Representations. Provider represents and warrants that: (a) Provider will perform the Services in a workmanlike manner consistent with industry standards; (b) Provider has the full power and authority to enter into and perform this Agreement; and (c) Provider is a duly formed Texas limited liability company in good standing under the laws of the State of Texas.

7.2 Client Representations. Client represents and warrants that: (a) Client has the full power and authority to enter into this Agreement; (b) Client owns or has all necessary rights in the Client Provided Materials; and (c) the execution, delivery, and performance of this Agreement will not conflict with any other agreement to which Client is a party.

7.3 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PROVIDER IP, AND CLIENT MATERIALS ARE PROVIDED ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PROVIDER DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM HARMFUL COMPONENTS.

8. Indemnification

8.1 Provider Indemnification. Subject to Section 8.2, Provider will defend Client against any claim, suit, or proceeding brought by a third party ("Claim") alleging that Client's use of the Platform or Services, as permitted under this Agreement, infringes or misappropriates such third party's Intellectual Property Rights, and will indemnify and hold harmless Client against any damages and costs awarded or agreed in settlement by Provider (including reasonable attorneys' fees).

8.2 Exclusions. Provider's obligations under Section 8.1 do not apply if the Claim arises from: (i) Client's breach of this Agreement, negligence, willful misconduct, or fraud; (ii) Client Provided Materials; (iii) Client's failure to use any updates or modifications to the Platform provided by Provider; (iv) modifications to the Platform by anyone other than Provider; or (v) combinations of the Platform with software, data, or materials not provided by Provider.

8.3 IP Remedies. If Provider reasonably believes the Platform (or any component) could infringe any third party's Intellectual Property Rights, Provider may, at its sole option and expense: (i) modify or replace the Platform to make it non-infringing; or (ii) procure the right for Client to continue use. If Provider determines neither alternative is commercially practicable, Provider may terminate this Agreement by written notice, in which case Provider will refund a pro-rata portion of the Fees paid for the unexpired period. The rights and remedies in this Section 8 constitute Client's sole and exclusive remedy for any infringement of Intellectual Property Rights in connection with the Platform or Services.

8.4 Client Indemnification. Client will defend Provider against any Claim arising from: (i) Client Provided Materials, including any claim that such materials infringe any third party's intellectual property rights or privacy rights, or that their use, provision, transmission, display, or storage violates any applicable law; (ii) any of Client's products or services; or (iii) Client's or its Authorized Users' use of the Platform in a manner not in accordance with this Agreement or Documentation, including any breach of the license restrictions in Section 2.2, and will indemnify and hold harmless Provider against any damages and costs awarded or agreed in settlement.

8.5 Indemnification Procedures. The party seeking defense and indemnity ("Indemnified Party") will promptly (and in any event no later than thirty (30) days after becoming aware of facts giving rise to a Claim) notify the other party ("Indemnifying Party") and will reasonably cooperate in the defense and/or settlement. The Indemnifying Party will have the sole right to conduct the defense; provided that it may not settle any Claim without the Indemnified Party's prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, requires no admission by the Indemnified Party, and places no restrictions on the Indemnified Party's business, products, or services. The Indemnified Party may participate in the defense at its own expense.

9. Limitation of Liability

9.1 Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS; (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY; OR (III) BREACH OF CLIENT'S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE, OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PROVIDER IP, OR THE PROVISION OF THE SERVICES — WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE — AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

9.2 Total Liability Cap. IN NO EVENT WILL PROVIDER'S TOTAL LIABILITY TO CLIENT OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE PROVIDER IP, OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CLIENT TO PROVIDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED.

10. Non-Solicitation

During the Term and for twelve (12) months thereafter, Client and its affiliates shall not directly or indirectly encourage, solicit, or hire any employee or contractor of Provider or its affiliates to leave or terminate their relationship with Provider for any reason. A general job posting not specifically targeting Provider's employees shall not constitute a violation of this Section.

11. General Provisions

11.1 Entire Agreement. This Agreement, together with all Statements of Work, exhibits, and addenda, is the complete and exclusive statement of the agreement between the parties and supersedes all prior communications, negotiations, representations, and agreements relating to the subject matter. There are no third-party beneficiaries under this Agreement. Modifications require written agreement signed by both parties.

11.2 Notice. Any notice, request, or demand required or permitted under this Agreement shall be in writing and delivered via email during normal business hours to the other party.

11.3 Assignment. This Agreement may not be assigned, conveyed, transferred, or otherwise granted to any person or entity without the express written permission of the other party, except that in the event of the sale of all or substantially all of the assets or business of a party, this Agreement may be assigned to the purchaser. Any attempted assignment in violation of this section will be void. This Agreement inures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.

11.4 Waiver. No delay or failure by either party in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights.

11.5 Further Assurances. Upon reasonable request, each party shall, at the requesting party's cost and expense, execute and deliver all documents and instruments, and take all further actions necessary to give full effect to this Agreement.

11.6 Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any conflict of laws provisions. Except as otherwise agreed in writing, the exclusive jurisdiction for all disputes will be the state and federal courts located in Travis County, Texas, and each party waives any objection to jurisdiction and venue in such courts.

11.7 Export Regulations. Client affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States ("Export Laws") to ensure that neither the Platform, Services, software, nor any technical data related thereto is used, exported, or re-exported in violation of Export Laws or for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons proliferation.

11.8 U.S. Government End Users. The Platform, Services, software, and Documentation were developed solely at private expense and are "commercial products," "commercial items," or "commercial computer software" as defined in the Federal Acquisition Regulation 2.101 and other applicable government procurement regulations. Any use, duplication, or disclosure by or on behalf of the U.S. government is subject to the restrictions set forth in this Agreement, consistent with federal law and regulations.

11.9 Counterparts and Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. This Agreement may be executed by electronic signature, which shall have the same effect as a handwritten signature.

11.10 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other arising out of or related to this Agreement or any Statement of Work, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

11.11 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.

11.12 Headings. The section headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

12. Contact

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