Last Updated: June 28, 2022
The QA Wolf Terms and Conditions (“Agreement”), in effect as of the Effective Date on an applicate Statement of Work, is by and between Client and Provider
WHEREAS Client provides or operates certain web applications as described on an applicable Statement of Work, AND,
WHEREAS Provider is a software testing firm who provides services to startups and venture backed companies, AND,
WHEREAS Client wishes to retain Provider to provide Services described in this Agreement, and Provider agrees to provide such services in consideration of the payments described herein.
NOW, THEREFORE, both parties agree to the terms of this Agreement as follows:
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 the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Provider to Client (including any revised versions thereof) 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, without limitation, patent 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 applicable Statement of Work.
1.5 “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 will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. A Statement of Work may be amended only by written agreement of the parties. The first Statement of Work executed between parties will be considered as the first Statement of Work under this Agreement and parties may execute additional Statement of Works by mutual written agreement from time to time.
1.6 “CPI” means the United States Department of Labor, Bureau of Labor Statistics, Washington, D.C. — Consumer Price Index for All Urban Customers seasonally adjusted U.S. city average: All items (1982-1984 = 100) as periodically published.
2.1 Platform and Services. Subject to the terms and conditions of this Agreement, Provider hereby grants Client a limited, non-exclusive, non-transferable (except in compliance with Section 14) right to use Provider’s software testing and automation platform (“Platform”) during the Term, solely for Client’s internal business purposes in accordance with, and subject to, the Licensed Volume and in accordance with the Agreement. Provider agrees to provide certain implementation, testing, engineering and support services as set forth in the applicable Statement of Work (the “Services”) during the Term. Client will reasonably cooperate with Provider as needed or reasonably requested to facilitate the Services, and Provider will not be liable for any delay or omission of performance of Services resulting from Client’s failure to so reasonably cooperate with Provider.
2.2 Platform Use Restrictions. Client will not at any time and will not permit any person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Platform or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Platform to any other person, or otherwise allow any person to use the Services for any purpose other than for the benefit of Client in accordance with this Agreement; (v) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Provider for use expressly for such purposes; or (viii) use the Platform, Documentation or any other Provider Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
2.3 Authorized Users. Client will not allow any person other than Authorized Users to use the Platform. Client may permit Authorized Users to use the Platform, provided that 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 in connection with their use of the Platform. Client will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Platform in accordance with customary security protocols, and will promptly notify Provider if Client knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Platform may only be accessed and used by the specific Authorized User for whom such account is created.
2.4 Third-Party Services. Certain features within the Platform and/or aspect of Services may allow Client and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”). Provider does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform and/or Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Client is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Client to use the Third-Party Services in connection with the Platform or Services.
3.1 Term. This Agreement shall begin on the Effective Date on an applicate Statement of Work and end upon expiration of the last active Statement of Work (such period the “Term”).
3.2 SOW Term. Unless expressly agreed to in writing by the parties, each Statement of Work automatically renews for the term set forth in the such Statement of Work (“SOW Term”); provided however, either party may terminate the Statement of Work by notifying the other party of its intent not to renew such Statement of Work at least thirty (30) days prior to the end of the then-current SOW Term.
3.3 Termination. Either party may terminate this Agreement (and applicable Statement of Work(s)), immediately effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. No termination or expiration of this Agreement will affect Client’s obligations to pay all Fees that have become due or otherwise accrued through the effective date of termination or expiration.
4.1 Payment Terms. Client will pay to Provider the fees specified in the applicable Statement of Work (the “Fees”), on a non-refundable basis without offset or deduction. Client will pay all amounts set forth on any invoice issued by the Provider no later than thirty (30) days after the date of such invoice. Payments due to Provider under this Agreement must be made in U.S. dollars by check, credit card, ACH, wire transfer of immediately available funds to an account designated by Provider or such other payment method mutually agreed by the parties. Client is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Client to Provider hereunder, other than any 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 Platform and/or Services until all payments are made in full. Client will reimburse Provider for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. If Client has signed up for automatic billing, Provider will charge Client’s selected payment method (such as a credit card, debit card, gift card/code, or other method available in Provider’s home country) for any Fees on the applicable payment date, including any applicable taxes. If Provider cannot charge Client’s selected payment method for any reason (such as expiration or insufficient funds), Client remains responsible for any uncollected amounts, and Provider will attempt to charge the payment method again as Client may update its payment method information. In accordance with local law, Provider may update information regarding Client’s selected payment method if provided such information by Client’s financial institution.
4.2 Renewal Adjustment. With respect to the Fees for any renewal term under any SOW, unless otherwise agreed in such Statement of Work or Provider notifies Client in writing at least sixty (60) days prior to the end of the then-current SOW Term, the Fees for such renewal term will automatically increase by the greater of (i) the percentage increase in CPI over the prior term; and (ii) five-percent (5%).
Provider shall be considered an independent contractor at all times. No article or amendment to this Agreement shall be taken to imply or create a partnership, joint venture, or employer/employee relationship between the Provider and Client and neither party shall have any legal authority to bind the other. Other than as stipulated in the applicable Statement of Work, Provider shall retain the full right to control and decide the manner in which the Services described in this Agreement are carried out and provided. Provider’s employees shall not be eligible for any benefit programs offered by the Client to its employees. Provider shall be solely liable for payment of any taxes resulting from Provider’s performance of the Services without limitation. Client shall not be responsible for withholding taxes from invoices paid to the Provider.
6.1 Confidential Information. Each party agrees that, except with the prior written permission of the other party, it shall, and shall cause its employees, agents, and all persons controlled by it, at all times keep confidential and not divulge, use, permit the use of, 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 has been or shall become privy by reason of this Agreement or its relationship with the Client prior to the date of this Agreement (“Confidential Information”); provided, however, that 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. As between the parties, Confidential Information of the disclosing party will remain the sole and exclusive property of the disclosing party and nothing herein transfers and right, title or interest therein to the receiving party. Confidential Information does not include information (A) rightfully known to the receiving party prior to receiving it from the disclosing party; (B) independently developed by or for the receiving party without use of or access to the disclosing party’s Confidential Information; (C) permissibly acquired by the receiving party from a third party which is not under an obligation of confidence with respect to such information; or (D) which is or becomes publicly available through no breach of this Agreement.
6.2 Provider IP. As between the parties, Provider will solely own and retain 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 that are used by or on behalf of Provider in connection with the delivery or performance 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 hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
6.3 Feedback. From time-to-time Client or its employees, contractors, or representatives may provide Provider with suggestions, comments, feedback or the like with regard to the Platform or Services (collectively, “Feedback”). Client hereby grants Provider a perpetual, non-exclusive, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Provider’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Platform and Services.
6.4 Client Materials.
(a) As between the parties, Client will solely own and retain all right, title and interest (including all intellectual property rights) in and to (i) all software code (including test code and custom code created by Provider specifically for Client) specifically created by Provider for Client in the performance of the Services, but excluding any Provider IP therein (collectively, “Client Materials”) and (ii) all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Client through the Platform or to Provider in connection with Client’s use of the Services (collectively, “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. In the event that any of the Client Materials are not patentable or copyrightable subject matter or for any reason are deemed not to be works-made-for-hire, then and in such event, by this Agreement, Provider hereby assigns all right, title and interest to said Client Materials to the Client, and Provider agrees to, at Client’s cost, execute all documents required and reasonably requested by Client to evidence such assignment. Without limiting the foregoing, it is specifically understood and agreed that, except as specifically otherwise set forth herein, Provider will retain no ownership rights whatsoever in or to the Client Materials.
(c) To the extent that any Provider IP is incorporated or embedded into or otherwise necessary to use any Client Materials, subject to the terms of this Agreement, Provider hereby grants Client a perpetual non-exclusive, royalty-free, fully paid-up, sublicensable, transferable, worldwide license under such Provider IP to the extent necessary to make, use, sell and exploit 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 hosting, operating, improving and providing the Platform and Services during the Term. Client represents, warrants and covenants that it has obtained and will maintain all consents necessary to provide the Client Provided Materials to Provider in connection with the Services.
7.1. Provider hereby represents and warrants to the Client as follows:
(a) Services. Provider will perform the Services in a workmanlike manner consistent with industry standards.
(b) Authority. Provider has the full power and authority necessary to enter into and perform its obligations under this Agreement. This Agreement has been (or upon execution and delivery will be) duly executed and delivered by Provider, and constitutes (or will constitute) a legal, valid and binding obligation of Provider enforceable in accordance with its terms.
(c) Absence of Conflicting Agreements or Required Consents. The execution, delivery and performance by Provider of this Agreement will not and does not: (a) require the consent of or filing with any government authority or any other third party; (b) conflict with, result in a breach of, or constitute a default under, any order of any court or governmental authority to which Provider is subject or by which Provider is bound; or (c) conflict with, constitute grounds for termination of, result in a breach of, constitute a default under, or accelerate or permit the acceleration of any performance required by the terms of, any Agreement or agreement to which Provider is a party or by which Provider is bound.
(d) Formation/Existence. Provider is a duly formed Delaware corporation which is in good standing under the laws of the jurisdiction under which it was organized.
7.2. Client hereby represents and warrants as follows:
(a) Authority. Client has the full power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been (or upon execution and delivery will be) duly executed and delivered by Client, and constitutes (or will constitute) a legal, valid and binding obligation of Client enforceable in accordance with its terms.
(b) Client Provided Materials. Client owns and retains all right, title and interest in and to all Client Provided Materials.
(c) Absence of Conflicting Agreements or Required Consents. The execution, delivery and performance by Client of this Agreement will not and does not: (a) require the consent of or filing with any government authority or any other third party; (b) conflict with, result in a breach of, or constitute a default under, any order of any court or governmental authority to which Client is subject or by which Client is bound; or (c) conflict with, constitute grounds for termination of, result in a breach of, constitute a default under, or accelerate or permit the acceleration of any performance required by the terms of, any Agreement or agreement to which Client is a party or by which Client is bound.
(d) Formation/Existence. Client is a duly formed corporation which is in good standing under the laws of the jurisdiction under which it was organized.
7.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, VENDOR IP AND CLIENT MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, AND PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE SERVICES AND PROVIDER IP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
8.1. Provider Indemnification. Subject to Section 8.2, Provider will defend Client against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Client’s use of the Platform or Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Client against any damages and costs awarded against Client or agreed in settlement by Provider (including reasonable attorneys’ fees) resulting from such Claim.
8.2. Exclusions. Provider’s obligations under Section 8.1 will not apply if the underlying third-party Claim arises from or as a result of: (i) Client’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Client Provided Materials; (iii) Client’s failure to use any enhancements, modifications, or updates to the Platform or Services that have been provided by Provider; (iv) modifications to the Platform or Services by anyone other than Provider; or (v) combinations of the Platform or Services with software, data or materials not provided by Provider.
8.3. IP Remedies. If Provider reasonably believes the Platform or Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Provider may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform or Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Client to continue use. If Provider determines that neither alternative is commercially practicable, Provider may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Client. In the event of any such termination, Provider will refund to Client a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Client’s sole and exclusive remedy for any infringement or misappropriation 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) any Client Provided Materials, including, without limitation, (A) any Claim that the Client Provided Materials infringe, misappropriate or otherwise violate any third party’s intellectual property rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Client Provided Materials violates any applicable law, rule or regulation; (ii) any of Client’s products or services; and (iii) use of the Platform and/or Services by Client or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2.2, and in each case, will indemnify and hold harmless Provider against any damages and costs awarded against Provider or agreed in settlement by Client (including reasonable attorneys’ fees) resulting from such Claim.
8.5. Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party 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, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
Provider may use Client’s name, trademarks, and logos (collectively, “Client’s Marks”) on its website, Platform, and in its marketing materials to identify Client as Provider’s customer, and for the purpose of providing the Services to Client, provided that Provider will use commercially reasonable efforts to adhere to the usage guidelines furnished by Client with respect to Client’s Marks.
The term “Agreement” as used herein includes any future written amendments, modifications, or supplements made in accordance herewith including all Appendix, addenda and documents. This Agreement is the complete and exclusive statement of the agreement between the parties. It supersedes all other communications between the parties, oral or written, which relate to the subject matter of this Agreement. Modifications and/or amendments to this Agreement may be made only by one or more writings signed by both parties. There are no third party beneficiaries under this Agreement.
During the Term and for twelve (12) months thereafter, Client and its affiliates shall not directly or indirectly encourage or solicit any employee or contractor of Provider or its affiliates to leave or terminate their relationship with Provider for any reason.
Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
Any notice, request, order or demand required or permitted to be given under this Agreement to either party shall be in writing and shall be sent via email during normal business hours to the other party.
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 of the assets or business. Any attempted assignment in violation of the foregoing will be void. This Agreement and the terms and provisions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
No delay or failure of either party in exercising any rights hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such rights or any other rights hereunder.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
This Agreement, together with all exhibits and schedules hereto, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any conflict of laws provisions of any jurisdiction. Except as otherwise agreed in writing by parties, the exclusive jurisdiction for all disputes will be the state and federal courts located in the State of Delaware, and Client and Provider each waive any objection to jurisdiction and venue in such courts.
Client affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it 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, Client Provided Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Client will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
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 relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the software or its documentation.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but together, all of which shall be deemed one instrument. This Agreement may be executed by electronic signature, which shall have the same effect as a handwritten signature.
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement or any Statement of Work, addenda, or exhibit thereto, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
22.1. Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL 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 SUCH LIABILITY ARISES FROM ANY CLAIM 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.
22.2. Total Liability. 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, AND WHETHER OR NOT PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.’’