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Terms and Conditions

  1. DEFINITIONS
    1. “Authorized User” means an employee of Customer, Customer’s Client, or an individual consultant engaged by and acting under the direction and control of either of them, who is designated by Customer and/or Customer’s Client as having the right to access and use the Software pursuant to this Agreement.
    2. “Authorized User” means an employee of Customer, Customer’s Client, or an individual consultant engaged by and acting under the direction and control of either of them, who is designated by Customer and/or Customer’s Client as having the right to access and use the Software pursuant to this Agreement.
    3. “Customer’s Client” means an entity that engages Customer for use and access of the Software pursuant to this Agreement and on whose behalf the Authorized User uses the Software.
    4. “Documentation” means documentation relating to the Software that ContextQA generally provides to its customers.
    5. “Order Form” means a document, to be signed by both ContextQA and Customer in the form of Schedule A that describes, among other things, the specific Customer’s Client, term, fees, and Statement of Work (if applicable) for each matter where Customer resells and/or white-labels the Software to Customer’s Client.
    6. “Software” means ContextQA’s Software Test Automation Platform deployed by ContextQA on Customer’s or Customer’s Client’s side.
    7. “Website” means the websites located at https://contextqa.com and related sub domains.
  2. ACCESS GRANT; RESTRICTIONS ON USE
    1. Access Grant. Subject to all obligations of Customer under this Agreement and subject to all limitations and restrictions contained herein and in any Order Form and/or Statement of Work, ContextQA grants Customer during the Term, non-exclusive, non-transferable access and permission to authorize its Authorized Users to access and use, (i) the Software solely for the purposes set forth herein, in accordance with the Documentation, and (ii) the Documentation in connection therewith.
    2. Restrictions on Use. Customer shall not (and shall not authorize or knowingly permit any Authorized User or third party to) make any use or disclosure of the Software, the Website, or the Documentation that is not expressly permitted under this Agreement. Customer shall not (and shall not authorize or knowingly permit any Authorized User or third party to) allow any website, that is not fully owned by Customer or Customer’s Client, to frame, syndicate, distribute, replicate, or copy any portion of Customer’s or Customer’s Client’s website that provides direct or indirect access to the Software. Without limiting the foregoing, Customer shall not (and shall not authorize or knowingly permit any Authorized User or third party to) disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling.
  3. WHITE-LABEL; ORDER FORMS
    1. White-label. Notwithstanding, the foregoing Section 2.2, Customer is fully permitted to “white-label” and resell the Software to Customer’s Clients, pursuant to an Order Form, and present the Software in the market as its own
    2. Order Form. ContextQA and Customer shall enter into an Order Form, in the form shown in Schedule A, for each Customer’s Client that Customer white-labels and/or resells the Software to.
  4. PAYMENT
    1. Monthly Minimum Commitment. Commencing on the Effective Date, Customer agrees to pay a minimum monthly commitment of zero dollars ($0) (the “Minimum Commit”) during the Term. If Customer’s actual fees exceed the Minimum Commit for a given month, Customer shall pay such actual fees in lieu of the Minimum Commit. Furthermore, the excess difference between the actual fees paid by Customer for a given month and the Minimum Commit will not be credited to Customer’s account with respect to meeting the Minimum Commit for any future month. If the actual fees for any month are less than the Minimum Commit, Customer shall pay the Minimum Commit.
    2. Fees. Customer shall pay ContextQA the Minimum Commit and the actual fees, per the pricing chart attached as Schedule B, and referenced in any applicable Order Form and/or Statement of Work. Unless otherwise specified in an Order, all fees shall be paid to ContextQA in U.S. Dollars within fifteen (15) days from the date payment is received from the client.
    3. Statement of Work Fees and Expenses. The Work and Deliverables provided by ContextQA shall be at the pricing set forth in the applicable Order Form and/or Statement of Work. In the event an Order Form or Statement of Work does not reference any specific pricing, such Work shall be provided at ContextQA’s then current standard time and material rates. Any sales-related travel or activities conducted prior to the execution of an SOW (“Pre-SOW”) shall be the responsibility of the respective party incurring the expense, unless otherwise preapproved in writing by the Client. Work fees and applicable expenses may be billed to Customer monthly.
    4. Late Payments. Customer shall maintain separate Statements of Work with each client, incorporating payment terms applicable to each respective engagement. In the event of late payment, Customer shall be liable for all reasonable costs of collection, including attorneys’ fees. Overdue amounts shall accrue interest at a rate of one and one-half percent (1.5%) per month, prorated for partial periods, or the maximum rate permitted by applicable law, whichever is lower. Any payment not received within fifteen (15) days of the due date shall be deemed delinquent.
    5. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse ContextQA and hold ContextQA harmless for all sales, use, VAT, excise, property or other taxes or levies which ContextQA is required to collect or remit to applicable tax authorities. This provision does not apply to ContextQA’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished ContextQA with a valid tax exemption certificate.
  5. MAINTENANCE AND SUPPORT SERVICES
    1. Maintenance. ContextQA shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by ContextQA as defects in the Software (“Maintenance and Support Services”). ContextQA shall use commercially reasonable efforts to begin working on a resolution to Customer’s written notice of reported problems within fourteen (14) days, provided corrections shall be prioritized in ContextQA reasonable discretion. A response is not a guaranty of a solution to the reported problem; however, ContextQA will keep Customer apprised of the resolution closure. Additional features and functions are not included as part of the maintenance and support services.
    2. Service Availability. ContextQA’s goal is to provide Software availability twenty-four hours per day, seven (7) days per week (referred to as “24x7 Availability”) EXCEPT during times of scheduled updates. However, the parties recognize that 24x7 Availability is only a GOAL, and ContextQA cannot represent or guarantee that such goal can be achieved. These response time goals apply only to public production servers (i.e. web servers, application servers, and database servers). ContextQA shall use reasonable efforts to achieve 99% Software availability in North America. The Software availability goal excludes any time Customer requests the site be taken down for scheduled updates. ContextQA does not and cannot control the flow of data to or from ContextQA’s network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although ContextQA will use reasonable efforts to take actions it deems appropriate to remedy and avoid such events, ContextQA cannot guarantee that such events will not occur. Accordingly, ContextQA disclaims any and all liability resulting from or related to such events.
    3. Exclusions. ContextQA shall not be obligated to provide Maintenance and Support Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”). Any ContextQA support services related to Unsupported Code shall be subject to execution of a mutually agreed upon Statement of Work.
    4. Third Parties. ContextQA shall have the right to use third parties, including employees of ContextQA’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to ContextQA or its employees shall be deemed to include such Subcontractors.
  6. PROFESSIONAL SERVICES
    1. Time and Materials. Unless otherwise provided on a Statement of Work, all Work to be performed hereunder shall be performed on a time and materials basis and Customer shall maintain separate Statements of Work with each of its clients. Customer shall be responsible for all payments due to ContextQA for Work performed pursuant to the mutually agreed scope of work between ContextQA and Customer in connection with such client engagements.
    2. Statement of Work. Each Statement of Work shall define the Work to be provided to Client, the applicable pricing, Deliverables to be created thereunder, Customer deliverables and obligations, and all other appropriate terms and conditions. ContextQA will not be obligated to begin any Work unless a Statement of Work governing such Work has been executed by both parties. ContextQA may immediately cease performing Work, without liability, if a Statement of Work expires and is not immediately extended or replaced with a valid Statement of Work.
    3. Change Control Process. Change control for additional Work or scope to be delivered under a Statement of Work will be completed according to the following procedure prior to ContextQA starting any Work.
      1. Specific changes may be proposed by Customer.
      2. Proposed changes will be reviewed by ContextQA and a report of the scope, schedule, and budget impact (“Impact Report”) will be prepared and delivered to Customer.
      3. Customer will then review the Impact Report and approve or deny changes in scope, schedule, and/or budget
      4. Once ContextQA receives approval, ContextQA will begin work on the specific changes that have been approved
    4. Rights to Deliverables. Subject to Customer’s full payment for Deliverables, subject to any restrictions contained in the applicable Statement of Work, Customer shall own all right, title and interest to the Deliverables provided as part of the Services and identified in the applicable Statement of Work.
  7. OWNERSHIP
    1. Reservation of Rights. Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software, the Website, the Documentation, or any other ContextQA materials provided to Customer. ContextQA shall own all right, title, and interest in the Software, the Website, the Documentation, and any other ContextQA materials. ContextQA reserves all rights not specifically granted herein.
    2. Aggregate Data. As between the parties, ContextQA shall retain all right, title, and interest in and to any de-identified, aggregate, and statistical data derived solely from the usage of the ContextQA platform by Customer (“Aggregate Data”), provided such data does not include any Customer Data, Customer platform data, or any information that could reasonably identify Customer or its clients. Notwithstanding the foregoing, any confidential client information, including but not limited to requirements, generated test cases, workflows, or application screens, whether identifiable or de-identified, shall not be used by ContextQA for any internal purposes such as platform improvement, analytics, benchmarking, or performance optimization.
  8. CONFIDENTIALITY
    1. Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
    2. Confidentiality of Software. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, (A) the following is deemed ContextQA Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by ContextQA; (ii) the oral and visual information relating to the Software; and the terms and conditions of this Agreement, and (B) the following is deemed Customer Confidential Information with or without such marking or written confirmation: Customer data and any information submitted by Customer through the Software.
    3. Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
    4. Ownership of Confidential Information. Except as otherwise provided herein, nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other ContextQA Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the ContextQA Confidential Information. Except as otherwise provided herein, nothing in this Agreement shall be construed to convey any title or ownership rights to the Customer data or other Customer Confidential Information to ContextQA or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Customer Confidential Information or Customer data. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce, or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction, or distribution of the Confidential Information.
    5. Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
    6. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
    7. Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other ContextQA materials provided to Customer shall be owned by ContextQA, and Customer hereby agrees to assign any such rights to ContextQA. Nothing in this Agreement shall preclude ContextQA from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by ContextQA in the performance of services hereunder.
    8. Logo and Reference Rights Client grants Provider the right to:
      1. Use Client's company name and logo on Provider's website, marketing materials, and sales collateral to identify Client as a customer
      2. Reference Client's company name, logo, and general company information in investor presentations, pitch decks, and fundraising materials
      3. Include Client in lists of customers or partners on Provider's website and promotional content
      Provider will not disclose confidential details about Client's product, technical implementation, data, or business metrics without Client's prior written consent. This right applies to the fact of the relationship and Client's publicly available company information only.
      Client may revoke this right at any time with thirty (30) days written notice, after which Provider will remove Client's name and logo from all materials within a reasonable timeframe.
  9. WARRANTY
    1. Authorized Representative. Customer and ContextQA warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
    2. Disclaimer of Warranties. Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND CONTEXTQA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
    3. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of ContextQA.
  10. LIMITATION OF LIABILITY
    1. Liability Cap. EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF ANY LICENSE GRANTED HEREUNDER, AND CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER TO CONTEXTQA IN THE SIX (6) MONTHS PRIOR TO THE CLAIM FOR THE SOFTWARE OR, SERVICES WHICH GAVE RISE TO SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
    2. Disclaimer of Damages. EXCEPT FOR GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
  11. TERM AND TERMINATION
    1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue until all Order Forms and Statements of Work have expired, but at minimum will be in effect for two (2) years from the Effective Date.
    2. Termination by ContextQA. This Agreement and any license created hereunder may be terminated by ContextQA (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
    3. Termination by Customer. This Agreement may be terminated by Customer on thirty (30) days written notice to ContextQA if ContextQA fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from ContextQA’s receipt of Customer’s notice or a longer period if ContextQA is working diligently towards a cure.
    4. Termination. Upon termination of this Agreement, neither Customer nor Customer’s clients shall access the Software, , the Documentation, or any Deliverables under an Order Form or Statement of Work and Customer shall not circumvent any security mechanisms contained therein. All active Client contracts shall ensure continued, uninterrupted support and service by both Client and ContextQA as per the set contractual obligations with Client. Such support shall remain consistent with the commitments and service levels originally agreed upon with the Client. Both parties agree to act in good faith to uphold the spirit and intent of the original agreements.
    5. Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement
  12. CUSTOMER OBLIGATIONS
    1. Ancillary Agreements. Customer agrees that no employees of ContextQA shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
  13. MISCELLANEOUS
    1. Compliance With Laws. Each party Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
    2. Assignment. Neither party may assign or transfer this Agreement or any rights hereunder to any third party without the prior written consent of the other party, provided that such consent shall not be required if either party assigns this Agreement in connection with a merger, acquisition, joint venture or sale of all or substantially all of its assets. Customer may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of ContextQA. Any assignment or transfer in violation of this Section shall be null and void.
    3. Survival. The provisions set forth in Sections 2, 6, 7.2, 8, 9.3, and 11 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
    4. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to ContextQA shall be sent to the attention of the CEO. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
    5. Force Majeure. ContextQA shall not be liable to Customer for any delay or failure of ContextQA to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of ContextQA. Such causes shall include, but are not limited to, acts of God, war, terrorist act, invasion, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, bank closures/failures, natural catastrophes, floods, fires, loss of electricity or other utilities, generalized lack of availability of raw materials or energy, governmental acts or omissions, changes in laws or regulations, labor strikes, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
    6. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
    7. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or PDF) shall be considered an original.
    8. Order of Precedence. In the event of a conflict between the terms and conditions of this Agreement, an Order, or an End User License Agreement, the terms and conditions of the Order, Agreement, or End User License Agreement shall prevail, in that order.
    9. Modifications. The parties agree that this Agreement cannot be altered, amended, or modified, except by a writing signed by an authorized representative of each party.
    10. Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, neither Party shall hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of the other Party without the prior written consent of the other Party. Each Party further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of the other Party for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with the other Party. Violation of this provision shall entitle the non-breaching Party to liquidated damages equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
    11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
    12. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
    13. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. ANY ACTION ARISING OUT OF, OR RELATED TO, THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.