Terms of Services

These Terms and Conditions (the “Terms”) govern the use of the Services and are effective as of the date specified in the applicable Order Form, or if no date is specified, the date Customer first accesses the Services (as defined below) (the “Effective Date”). These Terms are incorporated into and form part of the Master Services Agreement (collectively, the “Agreement”) when referenced by or attached to a mutually executed order form or online registration page (each, an “Order Form”), between QualGent, Inc., a Delaware corporation (“QualGent”) and the Customer entering the applicable Order Form (“Customer”).

By agreeing to these Terms, you represent and warrant that you are at least 18 years of age and have not previously been suspended or removed from the Services. If Customer is an entity, organization, or company, the individual accepting these Terms represents and warrants that they have full corporate power and authority to bind Customer to this Agreement. When an individual creates an account using a corporate, organizational, or business email address (an “Organization Account”), that individual represents and warrants that: (i) they have authority from the organization associated with that email domain (the “Organization”) to create the account and bind the Organization to this Agreement; (ii) the account is created in the Organization’s capacity; and (iii) they have authority to upload materials and data to the Services. The Organization owns all rights in Organization Accounts.

1

Services and Support

1.1

Access

Subject to Customer’s compliance with this Agreement, QualGent grants Customer a limited, nonexclusive, nontransferable, and non-sublicensable right to access and use the products and services specified in an applicable Order Form (collectively, the “Services”). Except as explicitly permitted by this Agreement or an Order Form, the Services may only be used for Customer’s web and mobile applications (“Applications”) for its internal business purposes, subject to any restrictions set forth in an applicable Order Form.

1.2

Support

QualGent will provide Customer with commercially reasonable technical support, responding to inquiries within a reasonable timeframe consistent with QualGent’s standard support practices and procedures, or as further specified in the applicable Order Form. Customer may contact QualGent for support through the channels provided by QualGent. QualGent may temporarily suspend or limit Customer’s access to the Services for scheduled maintenance, emergency maintenance, or to address security, performance, or compliance issues.

1.3

Documentation

QualGent may make available user guides, manuals, instructions, and other technical materials for certain Services via published documentation (“Documentation”). Customer must use the Services in accordance with the Documentation, as it may be updated from time to time.

1.4

Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying models, structure, ideas, or algorithms of the software underlying the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any QualGent product or service or any third-party large language model provider; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures QualGent may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services, whether through use of manual or automated means.

1.5

Agency Use

If Customer enters an Order Form for agencies, Customer may test Applications of its clients only if Customer: (i) obtains written authorization from each client; (ii) has authority to grant QualGent the access rights in this Agreement; and (iii) implements industry standard security measures and appropriate data segregation between clients. Notwithstanding anything else, Customer shall not resell, white-label or sublicense the Services (including its clients). Customer agrees to defend, hold harmless and indemnify QualGent for claims arising from unauthorized Application uploads and use of the Services.

2

Customer Responsibilities

2.1

Cooperation

Customer agrees to reasonably cooperate with QualGent by providing timely access to necessary resources, information, and personnel required for the successful implementation, integration, and ongoing use of the Services. QualGent shall not be responsible for any delay caused by Customer’s failure to perform the foregoing.

2.2

Data Security and Access

Customer is responsible for maintaining secure credentials and proper access permissions. Customer must use non-production credentials with minimum necessary privileges, and immediately revoke credentials upon security concerns or termination. QUALGENT DISCLAIMS LIABILITY FOR DATA LOSS, CORRUPTION, OR UNAUTHORIZED ACCESS RESULTING FROM CUSTOMER’S MISCONFIGURATIONS OR CREDENTIAL MANAGEMENT.

2.3

Compliance with Laws

Customer shall comply with all applicable laws and regulations in connection with its use of the Services, including, without limitation, obtaining all necessary consents from any individual whose personal information or data is collected, processed, or otherwise used by Customer through the Services.

2.4

Acceptable Use Policy

Customer is solely responsible for ensuring that its use of the Services complies with applicable laws and regulations and does not infringe upon the intellectual property or privacy rights of any third party. Additionally, Customer’s use of the Services must at all times comply with QualGent’s Acceptable Use Policy (accessible via https://qualgent.ai/acceptable-use-policy), which is incorporated by reference (the “Use Policy”). QualGent reserves the right to remove or disable access to content that violates the Use Policy or interferes with legal compliance.

3

Repositories and Third-Party Services

3.1

Third-Party Services

Where Customer integrates the Services with third-party services (including source-code repositories, APIs, or other services, collectively “Third-Party Services”), Customer: (i) represents that it has and will maintain all necessary rights and consents for such Third-Party Services; (ii) shall grant only minimum required permissions and promptly revoke unnecessary access; (iii) is solely responsible for credentials, security configurations, and ensuring no unlawful or unauthorized data exists; (iv) acknowledges QualGent may process data from such Third-Party Services to provide the Services; and (v) agrees QualGent may suspend Third-Party Services that pose security, performance, or compliance risks. Customer acknowledges QualGent is not responsible for Third-Party Services’ operation or availability, makes no representations regarding such services, and disclaims liability for issues arising from Customer’s configuration, credential management, or Third-Party Service dependencies. Where Customer integrates the Services with source code repositories via OAuth or similar mechanisms, Customer grants QualGent permission to: (i) access repository contents to perform the Services and exercise its rights and obligations under this Agreement; (ii) automatically trigger tests based on repository events; and (iii) read and write test results to the applicable repository platform or Third-Party Service.

3.2

Virtual Environments

The Services may utilize virtual device environments, emulators, or simulators to perform testing. Customer shall not: (i) attempt to compromise the security of testing environments; (ii) introduce malicious code or attempt to access other customers’ data; or (iii) attempt to extract or reverse engineer the virtualization infrastructure.

3.3

Testing Limitations

Customer acknowledges that the Services’ testing capabilities may vary across supported platforms, including due to platform-imposed technical restrictions, API availability, and operating system differences. The Services are not designed to provide comprehensive accessibility testing, and QualGent makes no representations regarding the Services’ ability to detect accessibility issues, including without limitation compliance with WCAG guidelines, Section 508 requirements, screen reader compatibility, or other assistive technology standards. The Services’ AI testing capabilities are optimized for English-language interfaces and may provide inadequate or incomplete coverage for internationalization features, localization implementations, right-to-left languages, non-Latin character sets, or interfaces in languages other than English.

4

Fees and Payment Terms

4.1

Fees; Payment

Customer shall pay QualGent the applicable fees as set forth in each Order Form (the “Fees”). Unless otherwise specified in the applicable Order Form, payments will be due within thirty (30) days of invoice. Except as otherwise provided in this Agreement, all Fees paid are non-refundable and are not subject to set-off.

4.2

Credits

Unless otherwise indicated in an applicable Order Form, purchased credits expire twelve (12) months from the date of purchase (on a first-in-first-out basis). QualGent reserves the right to modify credit consumption rates, credit pricing, feature costs, and the credit value of specific Service capabilities by providing Customer at least thirty (30) days’ notice (email to the billing address sufficient). Different Service features, capabilities, and usage patterns may consume credits at materially different rates as specified in the Documentation or in the Services. Customer is solely responsible for monitoring its credit expiration dates and usage patterns.

4.3

Past Due Invoices

Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall also reimburse QualGent for all reasonable costs incurred by QualGent in the collection of past due amounts, including attorneys’ fees and collection agency fees.

4.4

Taxes

Customer shall be responsible for all taxes associated with the Services (excluding taxes based on QualGent’s net income). Should QualGent pay any such taxes on behalf of Customer, Customer agrees to reimburse QualGent for such payments, unless Customer provides QualGent with a valid tax exemption certificate authorized by the appropriate taxing authority.

5

Intellectual Property and Data

5.1

Customer Applications

Customer retains all rights, title, and interest in and to the Applications submitted to the Services for testing. Customer represents and warrants that it has all necessary rights, licenses, and permissions to provide the Applications to the Services and that doing so does not breach any third-party agreements or infringe upon any third-party intellectual property rights. Customer grants QualGent a non-exclusive license to access, use, and create copies and derivatives of the Applications solely as necessary to run them in QualGent's testing simulators and perform its obligations under this Agreement.

5.2

Service Outputs

“Service Outputs” means the evaluations and reports generated specifically for Customer during the performance of the Services. As between the parties, QualGent owns all Service Outputs. Subject to Customer's compliance with the terms of this Agreement, QualGent grants Customer a perpetual, irrevocable, non-exclusive license to use the Service Outputs for its internal business purposes (including to test, troubleshoot, and improve its Applications). Service Outputs are not intended to be published or shared broadly to third parties, but QualGent may make limited exceptions at its reasonable discretion.

5.3

QualGent Technology

QualGent retains all rights, title, and interest in and to the Services, the underlying software, and all upgrades and modifications thereto. Customer may (but is not obligated to) provide feedback regarding the Services, and QualGent may freely use such feedback. No rights or licenses are granted by implication or otherwise, except those explicitly provided in this Agreement.

5.4

Usage Data

As between the parties, QualGent retains all rights and title in and to all usage and technical data generated while performing the Services, including test execution data, bug reports, screenshots, results, interactions, embeddings, and derivative data (collectively, “Usage Data”), but excluding Applications (and underlying code). QualGent may use Usage Data to improve and develop its products and services (including by training models), but it will not share any Usage Data except in an aggregated/anonymized manner (including to deliver customer insights and industry trends).

6

Confidentiality

6.1

Proprietary Information

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (“Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information; (ii) to give access to such Proprietary Information solely to those employees with a need to have access for purposes of this Agreement; and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.

6.2

Exclusions

The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

6.3

Deletion

Promptly after the expiration or termination of this Agreement, the Receiving Party shall delete all Proprietary Information of the Disclosing Party, subject to all applicable laws, regulations, and governmental or legally mandated record-keeping requirements.

6.4

Personal Data

To the extent Customer provides personal data (as defined by applicable privacy law) through the Services, QualGent will process such personal data in accordance with its then-current form of Data Processing Agreement, which is available upon request.

7

Term and Termination

7.1

Term

This Agreement starts on the effective date of the first Order Form and continues until the last active Order Term expires or terminates (the “Term”), unless terminated earlier as set forth in this Agreement. Each Order Form has an initial period stated in that form (the “Initial Term”) and automatically renews for successive twelve (12) month periods (“Renewal Terms,” together with the Initial Term, the “Order Term”), unless either party gives notice of non-renewal at least thirty (30) days before the expiration of the then-current Order Term.

7.2

Fee Updates

QualGent may increase the Fees for any Renewal Term by providing Customer notice (email acceptable) at least sixty (60) days prior to the end of the then-current Order Term.

7.3

Termination for Breach

Either party may terminate this Agreement for the other party’s material breach that remains uncured thirty (30) days after the terminating party provides the breaching party notice of such breach. Without limiting the foregoing, QualGent may suspend Customer’s access to the Services if Customer’s account is past due.

7.4

Termination for Insolvency

Either party may terminate this Agreement immediately upon written notice if the other party: (i) becomes insolvent or admits inability to pay its debts; (ii) makes an assignment for the benefit of creditors; (iii) becomes subject to any bankruptcy, reorganization, liquidation, or insolvency proceeding; or (iv) has a receiver, trustee, or similar officer appointed for its business or assets.

7.5

Survival

All provisions of this Agreement that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

8

Indemnification

8.1

Indemnity

Each party (the “Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that: (i) in the case of QualGent as Indemnitor, the underlying software of the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right; (ii) in the case of Customer as Indemnitor, Customer’s use of the Services or relating to infringement or misappropriation of any third party right by the Applications.

8.2

Exclusions

The foregoing obligations of QualGent do not apply with respect to the Services or its underlying software or any information, technology, materials or data (or any portions or components of the foregoing) to the extent: (i) not created by QualGent (including the Applications and its underlying data and content); (ii) made in whole or in part in accordance with Customer specifications; (iii) modified after delivery by QualGent; (iv) combined with other products, processes or materials not provided by QualGent; (v) where Customer continues allegedly infringing activity after being notified thereof; or (vi) Customer’s use of the Services is not in accordance with this Agreement.

8.3

Procedures

Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).

9

Warranties and Disclaimers

9.1

Warranties

QualGent represents and warrants: (i) it has the authority to enter into this Agreement; (ii) the Services shall be provided in a professional and workmanlike manner by qualified personnel; and (iii) it will use commercially reasonable industry standard methods designed to ensure the Services do not include any computer code or other instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof.

9.2

Testing Assistance Only

THE SERVICES ARE TESTING ASSISTANCE TOOLS ONLY AND DO NOT REPLACE CUSTOMER'S INDEPENDENT QUALITY ASSURANCE, CODE REVIEW, OR DECISION-MAKING. QUALGENT MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY, COMPLETENESS, OR RELIABILITY OF TEST RESULTS, BUG REPORTS, OR SERVICE OUTPUTS, INCLUDING WITHOUT LIMITATION THE ABILITY TO DETECT ALL DEFECTS, THE ABSENCE OF FALSE POSITIVES OR NEGATIVES, OR THE SUITABILITY OF TEST COVERAGE FOR CUSTOMER'S USE CASE. CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY FOR PRODUCTION RELEASE DECISIONS AND ANY DAMAGES ARISING FROM DEFECTS, BUGS, OR SECURITY VULNERABILITIES IN CUSTOMER APPLICATIONS, WHETHER OR NOT DETECTED BY THE SERVICES, AND AGREES TO INDEPENDENTLY VERIFY ALL TEST RESULTS AND IMPLEMENT COMPREHENSIVE QUALITY ASSURANCE PROCESSES.

9.3

Autonomous Technology

THE SERVICES UTILIZE AUTONOMOUS AI AGENTS THAT OPERATE WITH INHERENT UNPREDICTABILITY AND MAY TAKE UNEXPECTED ACTIONS, NAVIGATE TO UNINTENDED APPLICATION AREAS, OR EXPLORE FUNCTIONALITY BEYOND DEFINED TEST PARAMETERS. QUALGENT MAKES NO WARRANTY THAT AI AGENTS WILL BEHAVE IN PREDICTABLE WAYS, AND IT IS NOT LIABLE FOR ANY CONSEQUENCES ARISING FROM UNINTENDED AI AGENT ACTIONS DURING TESTING. CUSTOMER IS RESPONSIBLE FOR CONFIGURING APPROPRIATE TEST PARAMETERS, SCOPE LIMITATIONS, AND ACCESS CONTROLS, AND MUST ENSURE TEST ENVIRONMENTS ARE PROPERLY ISOLATED FROM PRODUCTION DATA AND SYSTEMS TO HELP PREVENT UNINTENDED CONSEQUENCES FROM AUTONOMOUS AGENT BEHAVIOR.

9.4

General Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

10

Limitation of Liability

10.1 EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); OR (II) ANY LIABILITY IN THE AGGREGATE IN EXCESS OF THE FEES PAID (OR PAYABLE) BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

11

Notices

11.1 All notices under this Agreement will be in writing and sent: (a) for notices to QualGent at 2261 Market Street #86847, San Francisco, CA 94114; and (b) for notices to Customer, to the address or email address set forth in the applicable Order Form, or in each case, at such other address as may be given in writing by either party to the other in accordance with this Section. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.

12

Miscellaneous

12.1

Publicity

Customer agrees that QualGent may display Customer’s name and logo (“Customer Marks”) on its website and promotional materials, subject to Customer’s trademark guidelines. Customer may revoke this permission anytime by notice to support@qualgent.ai, and QualGent will remove such Customer Marks from active marketing materials within thirty (30) days.

12.2

Export Controls

Customer shall comply with all applicable export control laws and sanctions regulations, including U.S. Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR). Customer represents and warrants that it: (i) will not submit ITAR-controlled data or technology classified as other than EAR99 without prior written authorization from QualGent; (ii) is not located in or under the control of any U.S. embargoed countries or denied parties; and (iii) will not use Services for prohibited end uses including nuclear, missile, chemical, or biological weapons.

12.3

Governing Law; Arbitration

The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Any dispute between the parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in San Francisco, California under the rules of AAA. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement. Notwithstanding the foregoing, each party shall have the right at any time to institute an action in any court of proper jurisdiction for injunctive or other equitable relief. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

12.4

Entire Agreement

This Agreement (including the Terms and all Order Forms) constitutes the entire agreement between Customer and QualGent regarding its subject matter and supersedes all prior or contemporaneous agreements, whether oral, written, or electronic. In the event of a conflict between an Order Form and the Terms, the conflicting provisions of the Terms shall prevail.

12.5

Amendment; Waiver

Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party.

12.6

Force Majeure

Except for payment obligations, neither party shall be liable for any failure to perform its obligations under this Agreement to the extent caused by circumstances beyond its reasonable control. Such circumstances include fire, flood, severe weather, earthquakes, power failures, denial-of-service attacks, acts of God, war, terrorism, riots, civil disturbances, strikes, labor disruptions, pandemics, epidemics, governmental actions, or disruptions of third-party services or infrastructure.

12.7

Severability

If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable.

12.8

Assignment

Customer may not assign any of its rights or obligations under this Agreement without QualGent’s consent. QualGent may freely transfer or assign this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

12.9

No Agency

Nothing in this Agreement shall be construed as creating a joint venture, partnership, or agency relationship between the parties. Neither party has the authority to bind the other or incur obligations on its behalf.

12.10

Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed original signatures for all purposes.

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