1.Definitions:

“Authorized User” means any Customer, or apparent or implied agent of the Customer, whether director, officer, employee, or independent contractor, who has been granted access to the online services by Service Provider pursuant to this Agreement.
“Customer” means any entity incorporated in its respective city, state or country as an entity legally able to conduct business transactions.
“Documentation” means all deliverables, documents, reports, and the like, available in an online format to users of the online services, as updated from time to time.
“Order Form” means the order Customer placed for the online services to be performed by Service Provider, either online via the Test On Demand site, or any other vehicles.
“Service Providers” has the meaning set forth in the preamble, and includes any of Zen Quality Assurance Private Limited suppliers or affiliates that may provide support to the Service Provider.
“Test On-Demand Site” means the website Service Provider designates to provide the online service, or any successor website thereto.

2.Authorized User Terms and Conditions. By clicking the appropriate box and electronically accepting the terms in this Agreement, the Authorized User acknowledges and understands that:

a) The Authorized User, and therefore Customer, is bound by this Agreement to the fullest extent of the law.
b) The Authorized User, and therefore Customer, has created a contract for Services between Customer and Service Provider;
c) The Authorized User has the authority to represent the Customer in any and all necessary exchanges between Customer and Service Provider including, but not limited to, invoice payments, work orders, and contractual obligations.
d) All terms and conditions under this Agreement are applicable to both Authorized User and Customer.

3.Service Provider Obligations. In addition to the services included with Test On-Demand Services, Service Provider is obligated to do the following:

3.1 Service Provider shall designate employees or contractors that it determines, in its sole discretion, to be capable of completing the requested Services by Customer; and 3.1 Service Provider shall designate employees or contractors that it determines, in its sole discretion, to be capable of completing the requested Services by Customer; and
3.2 Upon successful submission of a new Order Form, or renewal of past Order form, by Customer, Service Provider shall acknowledge receipt of the submission by sending the Authorized User or Customer a system generated electronic mail (“e-mail”) to validate the order placed. Once validated, Service Provider shall then confirm acceptance of the order in a second electronic mail (“e-mail”) to the Authorized User or Customer. A simple notification to Service Provider of a new or renewed order will not constitute submission by Customer, or a possible acceptance by Service Provider, unless Service Provider confirms interaction in writing.
3.3 Service Provider will give a good faith effort to provide services and communications in a non-English language, when the request is reasonable. However, the official language of Service Provider is English and Service Provider will not be held accountable if there are misunderstandings stemming from communications in another language.

4.Customer Obligations:

4.1 Customer acknowledges that the use of Test on Demand Services by Customer, or Customer’s agent or Authorized User, warrants an obligation to:

a) Possess the requisite authority to enter into contractual arrangements with Service Provider on behalf of Customer’s business entity;

b) Inform Customer of any contractual arrangement executed on its behalf;

c) Advise Customer’s business entity of the specific terms and conditions that are applicable to it in connection with any such act or contractual arrangements; and

d) Seek to ensure that Customer’s business entity complies with the terms of the contractual obligation.   4.2 In the event that the original Authorized User is no longer employed by or with Customer, Customer shall not be relieved of its obligations under this Agreement.

4.2 In the event that the original Authorized User is no longer employed by or with Customer, Customer shall not be relieved of its obligations under this Agreement.

5.Fees and Expenses:

5.1 In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in valid quotations provided by Service Provider. All Payments by Customer to Service Provider shall be made in the currency specified in the valid quotation. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 5 shall constitute payment in full for the performance of the Services. Unless otherwise provided in this Agreement, said fee will be payable immediately by the Customer of an invoice from Service Provider, but in no event more than 30 days after completion of the Services performed.

6.Representations and Warranties:

6.1 Each party represents and warrants to the other party that:6.1 Each party represents and warrants to the other party that:a) It is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;b) It has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;c) The execution of this Agreement by its representative whose electronic acceptance is set forth has been duly authorized by all necessary corporate action of the party; andd) When executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
6.2 Service Provider warrants to Customer:a) that it shall perform the Services in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.b) that it shall make every effort to safeguard Customer’s Intellectual Property and sensitive data; and c) that Service Provider’s electronic records and logs of any new or renewed orders for Services are true and correct.
6.3 Customer warrants to Service Provider:a) That if the Services given by Service Provider are unsatisfactory, Customer shall notify Service Provider written notice not longer than thirty (30) days after completion of the Services, and allow Service Provider a reasonable time to cure.
6.4 Service Provider’s liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:a) In the event of breach by Service Provider due to nonperformance of Services, Service Provider may choose to provide Services at no cost to Customer.b) Further, Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9. c) The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after completion of such Services or Deliverables to Customer.     6.5 Service Provider makes no warranties except for that provided in Section 6.1 and 6.2 above. All other warranties, express and implied, are expressly disclaimed.

7. Access and Authentication:

Service Provider may provide password-protected access to websites, portals, dashboards and other Confidential Information belonging to the Service Provider in delivering the Services. Customer accepts that only Authorized Users of the Customer will have access to such confidential information. If any Authorized User resigns or is terminated from the Customer or is no longer associated with the Services provided by the Service Provider, the Customer will immediately notify the Service Provider. Customer warrants that it is the Customer’s responsibility to protect such authentication and access controls within their company and will not hold Service Provider responsible for any damages.

8. Intellectual Property:

All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services (collectively, the “Deliverables”) shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

9.Confidentiality:

9.1 From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information”); however, Confidential Information does not include any information that: 9.1 From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information”); however, Confidential Information does not include any information that: a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 9; b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or
9.2 The Receiving Party shall: a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; andc) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

10.Term, Termination, and Survival:

10.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services, unless sooner terminated pursuant to Section 10.2 or Section 10.3.

10.2 Either Party may terminate this Agreement, effective upon 10 days written notice to the other Party.

10.3 In the event that Customer attempts to terminate this Agreement, and is the Defaulting Party (the “Defaulting Party”), Customer remains liable for any outstanding or remaining fees due to Service Provider pursuant to this Agreement.

11.Limitation of Liability:

11.1 In no event shall Service Provider be liable to Customer or to any third party for any loss of use, revenue, or profit, or loss of data, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not Service Provider has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

11.2 In no event shall Service Provider’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed fifty-percent (50%) of the aggregate amounts paid or payable to Service Provider by Customer pursuant to this Agreement.

12. Notices:

All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to Service Provider at its address set forth above (or to such other address that it may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 12.

13. Severability:

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

14. Amendments:

No amendment to or modification of, or rescission, termination, or discharge of, this Agreement is effective unless it is in writing, identified as an amendment to, or rescission, termination, or discharge of, this Agreement and signed by each Party.

15. Waiver : 

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving.

16. Assignment:

Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of service provider’s assets without customer’s consent.

17. Choice of Law:

This Agreement and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.

18. Choice of Forum:

Each Party irrevocably and unconditionally agrees that it will not commence any action or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than the Southeast Central District in Norwalk, California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Torrance and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action or proceeding only in the Southeast Central District or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Torrance, California. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

19. Force Majeure:

The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, or explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national or regional emergency, or any other event which is beyond the reasonable control of such party.