Terms and Conditions

This User Agreement (“Agreement”) sets forth the terms and conditions under which Testing Partners, LLC, including its owners, affiliates and agents (collectively “TPL”) will provide services and facilities to users, and applies regardless of the form in which the services are being provided, including but not limited to the website located at www.testingpartners.com and all contents thereof (collectively “the Site”), accounts, registrations, Membership Packages, advertising, directory listings, dispute resolution, links to other websites, introductions and brokerage services, consulting services, any telephone, online and e-mail interactions with TPL including for the purpose of customer service, technical or other support provided, and all other communications to and from TPL (the “Services”). This Agreement shall also govern all other interactions between TPL and any users of the Services and visitors and viewers of the content of the Site, including but not limited to testing laboratories (“Members”), and companies and individuals seeking Members to perform testing services for them (“Seekers”) (each a “User” and collectively “Users”, which includes the User and his affiliates, predecessors and successors, and their respective contractors, employees, owners, agents, and anyone using or relying on the Services or the Site as a result of User’s use thereof). For the avoidance of doubt, a User signifies his agreement with and understanding of his obligations to adhere to all terms and conditions in this Agreement in any of the following ways: clicking “I Agree” on this Site, using the Services, viewing any content on the Site, interacting through any means with TPL, and interacting with any other User as a direct or indirect result of their being a user of this Site. As used herein, unless otherwise specified, words in the singular include the plural and vice versa and words in one gender include both genders, and shall include natural persons and entities, including sole proprietorships, limited liability companies, corporations, partnerships, non-profit organizations and all other types of organizations.

This Agreement also applies to all interactions between Users with respect to any testing, provided that Users are free to enter into any other agreements between themselves. Such other agreements shall not abridge, limit or change any of TPL’s rights as to Users or Users’ obligations to TPL. Users should discuss this Agreement with counsel prior to relying on it to set forth the rights and obligations between Users, and in particular between Members and Seekers. Users represent and warrant that such reliance occurs only after (a) they have read, considered and understood this Agreement and (b) had the unfettered opportunity to discuss same with the counsel of their choice. Nothing contained in this Agreement or anything communicated by TPL shall be considered or deemed by User to be any form of legal advice, it being understood that only its counsel can give such advice to User.

1.0 Introduction

These Terms and Conditions are incorporated into the Testing Partners LLC proposal made and submitted to you. The party executing this document (“Client”) indicates acceptance of this proposal as a contract between Client and Testing Partners LLC which governs the performance of the stated services and the rights and obligations of the parties and that Testing Partners LLC may proceed with the work.

2.0 Proposal Term

Unless otherwise stated in the proposal, this offer shall remain valid until accepted, but in no event for a period longer than thirty days from the date of the proposal.

3.0 Client Information

Client represents that the information supplied by it or its agents to Testing Partners LLC is accurate and complete and samples are representative, and Client has informed Testing Partners LLC concerning any dangerous or potentially dangerous characteristics of such samples which could cause injury during the performance of the work or in the transporting of such samples and Client also acknowledges that Testing Partners LLC is relying upon such information and samples or data in the preparation of this proposal without further verification by Testing Partners LLC as to its accuracy or completeness. The Client is responsible for informing Testing Partners LLC in advance of any applicable import/export restrictions that may apply to the samples and/or services to be provided, including instances where products, information or technology may be exported to a country that is restricted or banned from such export. The Client agrees to hold Testing Partners LLC harmless and indemnify Testing Partners LLC from any liability of whatever kind or nature, including but not limited to court costs and reasonable attorneys fees if information provided by the Client is inaccurate or incomplete or samples are not representative. Testing Partners LLC agrees that information received from the Client shall remain the property of the Client and will be returned to the Client upon demand. Client may designate in writing any information provided by Client to Testing Partners LLC as confidential and proprietary. If Client has done so, Testing Partners LLC will not release to third parties any such information without the prior written consent of the Client or only in response to a proper court order or process. As to that information, Testing Partners LLC may make and retain copies. Client shall designate in writing to Testing Partners LLC if it does not wish to have Testing Partners LLC transmit any information, including test data and Reports, via electronic means.

4.0 Proposal, Price and Payments

Testing Partners LLC will work diligently to provide the services according to the costs and schedule stated in the referenced proposal. Client recognizes and agrees that the proposal is a good faith estimate of the costs for the services to be provided and times of completion, but such estimate is not a guarantee of the total costs or time that may be involved in completing the proposal. Testing Partners LLC will not exceed the authorized estimate of costs without written authorization of Client. Samples will be shipped by Client to the specified lab prepaid and will be returned collect or disposed of at Client’s expense within thirty (30) days after testing is completed, unless alternative arrangements are made by Client. Additional fees will be charged for unanticipated assembly or preparation of samples. Test services will not be initiated until satisfactory credit has been established with Testing Partners LLC.

4.1 Payment. Payments for Services Rendered to TPL are due and paid immediately upon invoice submitted and are non-refundable.

4.2 Credit Card Payments. User shall pay all amounts owed through credit card charges. User shall be deemed to have approved all charges (and to have waived his right to dispute any charges therein) if User fails to object thereto in writing within sixty (60) days after the payment date.

4.3 Taxes. Except for any taxes attributable to the net income of TPL, Company will be responsible for, and Company shall pay, all applicable federal, state, city, county, municipal, local or other governmental excise, income and sales, value-added, use, personal property, occupational taxes, withholding taxes and any other obligations and levies and fees now in force or enacted in the future, that arise from the purchase or use of the Services (each a “Tax” and collectively the “Taxes”).

4.4 Collection of Amounts Due. TPL may, in addition to any other remedies available to it, impose a late payment charge of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is lower, on any amount not paid when due. In addition, TPL shall collect from User all fees, expenses or costs incurred by TPL in collecting any amounts that remain due and owing to TPL after the due date, including but not limited to reasonable attorneys’ fees, collection agency costs and court costs. If personal or company checks are ever accepted in TPL’s sole discretion, TPL may assess User a fee of $50.00 or the highest amount permitted by applicable law, whichever is lower, for any check returned for insufficient funds.

5.0 Invoicing

Invoices will generally be issued upon project completion. In certain instances, interim invoices may be issued. Invoices are due and payable to Testing Partners LLC at its offices, within thirty (30) calendar days after receipt of invoice, and Client agrees to pay reasonable collection costs if necessary in the event of non-payment.

6.0 Reports

The Client agrees to waive any claim against Testing Partners LLC and defend, indemnify, and hold Testing Partners LLC harmless from any and all causes of action, lawsuit, proceedings or claims, including legal fees and expenses incurred by Testing Partners LLC. This includes all reports, laboratory test data, calculations, estimates, notes and other documents prepared by Testing Partners LLC in the course of providing services to the Client. Testing Partners LLC retains any and all rights of ownership of Testing Partners LLC concepts, ideas, inventions, patents or copyrights used by Testing Partners LLC in preparing Testing Partners LLC Reports and the provision of services to the Client. Any use of the Testing Partners LLC name or one of its marks for the sale or advertisement of the tested material, product or service must first be approved in writing by Testing Partners LLC. If Testing Partners LLC becomes directly or indirectly involved in litigation, the Client agrees to compensate Testing Partners LLC for its fees and expenses, including legal costs, in accordance with Testing Partners LLC prevailing fee schedule and expense reimbursement policy.

7.0 Disclaimer of Warranties

7.1 THE SERVICES, THE SITE AND ALL INFORMATION AND CONTENT INCLUDED ON THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TPL MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SERVICES OR THE SITE, AND TPL HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF: (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR PURPOSE, (C) SUITABILITY, (D) USE, (E) NONINFRINGEMENT, (F) TITLE, (G) SERVICE BEING ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD-PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), (H) ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (I) THAT THE SITE WILL MEET USER REQUIREMENTS; (J) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE; OR (K) THAT ANY ERRORS IN THE SOFTWARE WHICH COMPRISES THE SITE WILL BE CORRECTED. NO INFORMATION OR ADVICE OBTAINED THROUGH THE SITE, OR ANY OTHER AFFIRMATION OF TPL, BY WORDS OR ACTIONS, SHALL CONSTITUTE A WARRANTY. USER USES ANY MATERIAL DISTRIBUTED, DOWNLOADED, OR ACCESSED FROM THE SITE AT HIS OWN RISK AND DISCRETION. USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS COMPUTER SYSTEM, LOSS OF DATA, OR LOSS DUE TO HIS DOWNLOADING OR RELIANCE UPON ANY SUCH MATERIAL. TPL DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF, AND USER SHOULD NOT RELY ON ANYONE MAKING SUCH STATEMENTS.

8.0 . Limitations and Exclusions of Liability

8.1 MAXIMUM LIABILITY OF TPL. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL TPL’S AGGREGATE LIABILITY TO USER (INCLUDING WITHOUT LIMITATION LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR ATTRIBUTED TO USER) OR TO ANY THIRD PARTIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT OR ANY SERVICE, EXCEED THE AGGREGATE AMOUNT OF CHARGES ACTUALLY PAID BY USER TO TPL UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.

8.2 NON-LIABILITY FOR CERTAIN TYPES OF CLAIMS.

(a) WITHOUT LIMITING THE FOREGOING, AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TPL SHALL HAVE NO LIABILITY TO USER WHERE THE CLAIMS ARISE OUT OF, RELATE TO, ARE CAUSED BY OR INVOLVE ANY OF THE FOLLOWING: (I) TPL’S COMPLIANCE WITH AN ORDER OR DEMAND TO SUSPEND OR TERMINATE THE SERVICES OR AN ACCOUNT; (II) ANY FORCE MAJEURE EVENT (AS DEFINED BELOW) OR OTHER CAUSES THAT ARE BEYOND TPL’S CONTROL; (III) THE MALFUNCTION, UNAVAILABILITY, INADEQUACY, UNTIMELY OR POOR PERFORMANCE OR NON-PERFORMANCE OR FAILURE OF POWER, EQUIPMENT, SYSTEMS, CONNECTIONS, FACILITIES, NETWORKS OR SERVICES NOT PROVIDED BY TPL, INCLUDING THOSE OF USER OR ANY THIRD PARTIES; (IV) TPL’S SUSPENSION OF SERVICES ACCORDING TO THE TERMS OF THIS AGREEMENT, (V) THE USE OF OR INABILITY TO USE THE SITE; (VI) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER TRANSMISSIONS OR DATA; AND (VII) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR ELSEWHERE, OR USERR RELIANCE ON THE SAME.

(b) WITHOUT LIMITING THE FOREGOING, AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TPL SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO (I) THE QUALITY, ACCURACY, PROPRIETY, DECENCY, UTILITY OR CORRECTNESS (OR LACK THEREOF) OF CONTENT, DATA OR INFORMATION TRANSMITTED ON THE SITE OR RECEIVED BY USER FROM ANYONE AS A DIRECT OR INDIRECT OF THE SERVICES; (II) LOSS OF CONTENT, DATA OR INFORMATION DUE TO DELAY, NON-DELIVERY, MIS-DELIVERY OR SERVICE INTERRUPTIONS HOWEVER CAUSED; OR (III) UNAUTHORIZED ACCESS TO, OR MISUSE, ALTERATION, THEFT, DESTRUCTION OR CORRUPTION OF, USER’S DATA, SOFTWARE, HARDWARE OR OTHER SYSTEMS.

(c) WITHOUT LIMITING THE FOREGOING, AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TPL SHALL HAVE NO LIABILITY WHATSOEVER EXCEPT TO THE EXTENT A USER SUFFERS PERSONAL INJURY PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE TPL.

8.3 EXCLUSIONS OF CERTAIN DAMAGES. IN NO EVENT SHALL TPL BE LIABLE TO USER OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, REPLACEMENT GOODS, LOSS OF TECHNOLOGY RIGHTS OF SERVICES, LOSS OF DATA, LOSS OF FILES OR SOFTWARE DAMAGE, FAILURE OR ERRORS IN SIGNAL TRANSMISSION, INTERRUPTION OR LOSS OF USE OF SERVICE, OR ANY OTHER TYPE OF DAMAGES OTHER THAN ACTUAL AND DIRECT DAMAGES (AND WITH REGARD TO ACTUAL AND DIRECT DAMAGES INCURRED BY USER, SUBJECT TO THE LIMITATION OF DAMAGES AS SET FORTH IN THIS AGREEMENT).

8.4 TYPES OF LIABILITY CLAIMS. THE LIMITATIONS IN THIS SECTION 8 APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCTS LIABILITY, TORT AND ANY OTHER THEORY OF LIABILITY.

8.5 Further Applicability. All limitations of liability applicable to TPL contained in this Section 8 shall also be applicable to TPL’s licensors, service providers, agents, and equipment vendors.

8.6 Waiver of Claims After Certain Period. All claims by User of whatever nature against TPL shall be deemed conclusively to have been waived unless User notifies TPL (specifying the nature of the claim) within six (6) months after the date of the occurrence of the event giving rise to the claim. Billing disputes shall be subject to the time limitations set forth per terms hereof.

8.7 Basis of Bargain; Failure of Essential Purpose. User acknowledges that TPL has established its prices and provides Service in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this Agreement, including Section 4, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement shall survive and apply even if argued or found to have failed of its essential purpose; and User hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.

9.0 Non-Disclosure

9.1 Company and Service providers (labs, consultants, etc.) are free to execute their own confidentiality agreements. Until and unless they do, their non-public interactions shall be governed by the terms of this Section 9 (“Non-Disclosure Agreement”).

9.2 Definitions. For purposes of this Non-Disclosure Agreement, “Confidential Information” means all information (including, without limitation, information in written, oral or machine-readable form) relating to the business or affairs of a party disclosing such information (“Disclosing Party”) to the other party receiving such information (“Recipient”), including (without limitation) information relating to existing systems, software, firmware, hardware, products and services, and those in development, and accompanying marketing plans and business strategies. The Disclosing Party shall have no obligation to specifically identify any information as to which the protection of this Non-Disclosure Agreement extends by any notice or other action, and the Recipient agrees that all such information relating to the business or affairs of the Disclosing Party shall be deemed Confidential Information, except to the extent that any such information (a) constitutes a “Trade Secret” (as defined below); (b) is known or becomes known to the general public other than as a result of unauthorized disclosure by the Recipient or by persons to whom the Recipient has made such information available, or as a result of others’ conduct that the Recipient knows (or reasonably should know) to have been wrongful; (c) is received by the Recipient on a non-confidential basis from a third party lawfully possessing and entitled to disclose such information; or (d) is independently developed by the Recipient without use of the Confidential Information. For purposes of this Non-Disclosure Agreement, “Trade Secrets” means all information (including, without limitation, information in written, oral or machine-readable form) that constitutes trade secrets under applicable law, such as software, technology, know-how, confidential business information, technical or non-technical data, formulas, compilations, patterns, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, and product plans of the Disclosing Party, clearly marked by the Disclosing Party as proprietary and/or confidential or trade secrets.

9.3 Legal Requirements to Disclose. If the Recipient becomes subject to a subpoena or other legal requirement to disclose any of the Confidential Information and/or Trade Secrets, the Recipient shall provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient will provide such assistance and cooperation in connection therewith as the Disclosing Party reasonably requests. If such protective order or other appropriate remedy is denied or otherwise not obtained, then the Recipient shall furnish only that portion of the Confidential Information and/or Trade Secrets material that is, in the reasonable opinion of its counsel, legally compelled. The Recipient will cooperate with the Disclosing Party to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and/or Trade Secrets to be disclosed. The Disclosing Party shall reimburse the Recipient for all reasonable out-of-pocket expenses the Recipient incurs in connection with providing assistance and cooperation pursuant to this provision.

9.4 Confidentiality Obligation. In recognition of the need of the Disclosing Party to protect its legitimate business interests, the Recipient hereby covenants and agrees that with respect to any: (i) Confidential Information, at all times during the transactions between the parties, and for a period of two (2) years following the later of disclosure of such Confidential Information or termination of such transactions; and (ii) Trade Secrets, at all times such information remains a “trade secret” under applicable law, the Recipient will regard and treat all such Confidential Information and/or Trade Secrets as strictly confidential and wholly owned by the Disclosing Party and will not, for any reason or in any fashion, either directly or indirectly, use, disclose, transfer, assign, disseminate, reproduce, reverse engineer, copy, or otherwise communicate any such Confidential Information and/or Trade Secrets to any individual or entity for any purpose other than in accordance with the express terms of this Agreement or any other written agreement between the Parties. The Recipient will not disclose any Confidential Information or Trade Secrets to any persons or entities other than such officers, employees, consultants or counsel of such Recipient who reasonably need to have access thereto for the purpose set forth herein and who are bound by the restrictions set forth herein. The Recipient shall exercise its reasonable efforts to ensure the continued confidentiality of all Trade Secrets and Confidential Information known by, disclosed or made available to Recipient or, by or on behalf of Recipient, to any third parties pursuant to this Agreement. The Recipient shall immediately notify the Disclosing Party of any intended or unintended, unauthorized disclosure or use of any Trade Secrets or Confidential Information by the Recipient or any other person or entity of which the Recipient becomes aware, and the Recipient shall assist the Disclosing Party, to the extent reasonably necessary, in procuring or protecting the Disclosing Party’s rights to or in any of the Trade Secrets or Confidential Information in connection therewith.

9.5 Purpose of Disclosure. The Confidential Information and Trade Secrets are made available by and to the parties for the sole and exclusive purpose of performing a testing transaction.

9.6 Proprietary Rights. The Disclosing Party retains all right, title and interest in and to the Confidential Information and/or Trade Secrets. Except as otherwise expressly provided herein, no license or other right is hereby transferred to the Recipient, including any license by implication, estoppel or otherwise, under any patent, trade secret, trademark or copyright now held by, or which may be obtained by, or which is or may be licensable by the Disclosing Party. The Recipient is prohibited from selling, leasing, licensing or otherwise in any manner, directly or indirectly, disclosing, assigning, transferring or disposing of any portion of the Confidential Information or Trade Secrets.

9.7 Enforcement. The Recipient recognizes that the unauthorized use or disclosure of the Confidential Information or Trade Secrets may give rise to irreparable injury to the Disclosing Party, inadequately compensable in damages. The Recipient hereby agrees that the Disclosing Party shall be entitled to seek and obtain injunctive relief against the breach or threatened breach of the Recipient’s obligations under this Agreement, in addition to any other legal remedies that may be available to the Disclosing Party.

9.8 Return of Information. Within five days after written request from the Disclosing Party, the Recipient shall return or destroy the Confidential Information and/or Trade Secrets of the Disclosing Party and certify in writing that, after reasonable investigation and to the best of its knowledge, all Confidential Information and/or Trade Secrets in its possession (including all copies, reproductions and excerpts thereof) have been returned or destroyed in the manner specified in the request.

9.9 General Disclaimer. Nothing herein shall obligate either party to disclose to the other any particular information, and no Party is making any representation or warranty, either express or implied, with respect to the infringement of any patents, copyrights, trade secrets or other proprietary right of any third party. The Recipient Party acknowledges that the Disclosing Party is providing Confidential Information and Trade Secrets without any representation or warranty, express or implied, as to accuracy or completeness.

10.0. Indemnification

10.1 User agrees to defend, indemnify and hold TPL and its affiliates and their respective employees, agents and owners harmless from and against any claims or actions made by a third party which relate to, or arise out of, the negligence or misconduct of User or his employees, agents or contractors. In addition, User shall defend, indemnify and hold TPL and its employees, agents and affiliates, harmless from and against any Damages (as defined above) arising out of or in connection with User’s use of the Service, including without limitation any and Damages related to or arising in connection with: (a) any breach by User of the terms of this Agreement; (b) any claim by any employee or contractor of User other than a claim based on the gross negligence or willful misconduct of TPL; (c) any claim by customers or vendors of User or any other third party relating to, or arising out of, User’s use of the Services; (d) User’s operations or services, including without limitation any content displayed, distributed or otherwise disseminated by User; (e) any claim that User’s use of the Service infringes on the patent, copyright, trademark or other intellectual property right of any third party; or (f) any act, omission, fault, negligence or misconduct of User, including without limitation any malicious act or act in violation of any laws committed by User.

11.0. Deposits

11.1 TPL will require some Users to deposit an amount as a security deposit, reflecting payments to be made under the Agreement (the “Deposit”). TPL reserves the right to require additional Deposits for subsequent Services if User has not made payments for existing Services in accordance with this Agreement. TPL reserves the right to require a Deposit from User if TPL determines that User’s creditworthiness is in doubt or becomes negative as reflected in User’s credit score or credit rating. If TPL requires User to pay a Deposit, TPL shall hold the Deposit as collateral security for the payment of the charges and other sums of money payable by User and for the faithful performance of all other terms, covenants and conditions of User hereunder. Such Deposit may be commingled with other funds of TPL and transferred out of state, and TPL shall have no liability for the accrual or payment of any interest thereon. User hereby waives the benefit of any provision of law requiring the Deposit to be held in escrow or trust, and the Deposit shall be deemed to be the property of TPL. In addition, TPL may require a Deposit and a reconnection fee before Services are restored if the Services have been discontinued by TPL for nonpayment or other default by User under this Agreement.

12.0. Miscellaneous

12.1 Assignment. User may not sell, assign, sub-lease or transfer any Services without TPL’s prior written consent. TPL will provide written consent, acting within its reasonable discretion, where User desires to assign or otherwise transfer same, in whole or in part, to any parent or subsidiary of User or to any purchaser of all or substantially all of User’s assets, or to a purchaser of User’s business as a going concern, so long as such affiliate or purchaser, as the case may be, signs TPL’s customary documentation for a new customer. TPL may assign or otherwise transfer this Agreement to any third party with written notice to User.

12.2 Independent Contractors. TPL and User are independent entities who have negotiated on an arms’ length basis, and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between TPL and User. Neither TPL nor User shall have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.3 Force Majeur. Notwithstanding anything seemingly to the contrary herein, no party shall be liable (except for its payment obligation) for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by events beyond such party’s reasonable control and without such party’s fault or negligence, including, but not limited to, unforeseen fire, flood, explosion, act of terrorism, accident, war, strike, embargo, governmental requirement, civil or military authority, or act of God (“Force Majeure”). Any such delay or failure shall suspend the affected party’s performance under this Agreement and the term shall be extended until the earlier of the date that the Force Majeure ceases or thirty (30) days.

12.4 Intellectual Property. Nothing this Agreement shall be deemed to give User any right to use, infringe upon, contest or impair any of TPL’s service marks, trademarks, logos, copyrights or any other ownership rights or intellectual property of TPL.

12.5 Non-Waiver. The waiver of any breach or default of any provision of this Agreement shall not constitute a waiver of any subsequent breach or default, and shall not act to amend or negate the rights of the waiving party.

12.6 Notices. Except where otherwise stated herein, any notice required or permitted to be given under this Agreement shall be in writing and shall be sent to the User by e-mail at the e-mail address supplied by User in his registration. Notice required by this Agreement to TPL must be transmitted to sales@testingpartners.com, with a copy transmitted by certified mail or overnight mail to Testing Partners, LLC, 8440 E. Washington Street #207, Chagrin Falls, OH 44023. Notices are deemed to have been given when sent provided same are shown in the written confirmation of transmission. Either party may, at any time, notify the other of a change of address for notices, by giving written notice in accordance with this Paragraph.

12.7 Captions. Captions in this Agreement are for convenience only and shall not be deemed to modify any of the terms hereof.

12.8 Governing Law; Jurisdiction. The Agreement as well as the relationship of the parties and any claims or disputes arising under or in connection with the Agreement or any Service, shall be governed by and enforced in according with the laws of the State of Ohio, without giving effect to any of its rules regarding conflicts of laws. TPL and User hereby agree that any disputes, controversies, causes of actions, or claims between the parties shall be brought in the Cuyahoga County Court of Common Pleas in Cleveland, Ohio; provided, however, that any such claim or cause of action may be brought in, or removed to, the United States District Court for the Northern District of Ohio, to the extent that such court would have jurisdiction over the subject matter of such action. TPL and User hereby consent and submit to the jurisdiction of such courts and, to the extent permitted by law, each party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder and brought in the courts identified above. User and TPL may bring claims against the other only in their individual capacity, and not as a plaintiff or class member in any purported class action or representative proceeding.

12.9 Construction of Agreement. Each party has used, or has had an opportunity to use, an attorney to review this Agreement, and it is the parties’ intent that the Agreement shall not be construed against either party by reason of authorship.

12.10 Third Part Beneficiaries. Except to the extent otherwise described in this Agreement, there are no third-party beneficiaries hereof and, accordingly, the covenants, undertakings, agreements and other provisions of this Agreement shall solely benefit, and be enforceable only by, TPL and User and their respective successors and permitted assigns.

12.11 Other Providers. Some or all of the Services provided to User may be provided by one or more TPL affiliates or contractors. TPL may also have or later acquire one or more licensors or service providers whose products or services are incorporated into the Services provided by TPL, and each such licensor or service provider is expressly made a third-party beneficiary under this Agreement. Such licensor or service provider shall have the right to enforce the terms of this Agreement with respect to any terms affecting such licensor or service provider as if such licensor or service provider were a party to this Agreement.

12.12 Survival. This Agreement shall be valid as to any obligation incurred prior to termination of an account. All Sections of this Agreement that can only be given proper effect if they survive the termination hereof shall so survive, including but not limited to Sections (Pricing and Payment), (Disclaimer of Warranties), (Limitations and Exclusions of Liability), (Non-Disclosure), (Indemnification), (Deposits) and (Miscellaneous).

12.13 Enforceability. If any provision of this Agreement, as applied to either party or to any circumstance, is determined by a court to be invalid, illegal or unenforceable, the same shall not affect the validity, legality, or enforceability of the portion of the provision, if any, that is not invalid, illegal or unenforceable, the application of such provision in any other circumstances, or the validity, legality or enforceability of any other provision of this Agreement. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court in any action between the parties is requested to reform any and all terms or conditions to give them as much effect as possible in order to reflect the clear intent of the parties.

12.14 Conflict of Terms. To the extent that the terms and conditions set forth in this Agreement differ from or conflict with those set forth on the Site which are incorporated by reference herein, the terms and conditions in this Agreement shall prevail and control.

12.15 Entire Agreement. This Agreement supersedes all other oral or written statements and represents the sole and entire agreement of the parties with respect to the subject matter hereof. Any amendment, revision or modification to this Agreement, and any waiver of any term hereof, shall not be effective unless it is in writing that is signed by TPL. Notwithstanding the preceding sentence, TPL may modify the AUP by posting the modifications on its Site, and if User continues to use the Service or access the Site after such posting, User shall be bound by such AUP as modified.

13.0 Governing Law

This proposal, and any work performed pursuant to this proposal, shall be governed by the laws of the jurisdiction within Geauga County, Ohio. Any action brought hereon shall be venued in said jurisdiction.

14.0 Severability

Any provision of this proposal that may be held invalid, void or unenforceable for any reason, shall not affect any other term or condition of this proposal, and such term or condition shall be replaced or interpreted to accomplish the intent of the parties.

15.0 Modifications

No modification, waiver or amendment of any of these terms and conditions, including any assignment of Client’s rights and responsibilities hereunder, shall be binding upon Testing Partners LLC unless agreed to in a writing signed by an agent of Testing Partners LLC.