Terms of Service

2.1. Access

(a) Subject to the terms of this Agreement, LambdaTest will provide Customer access to the LambdaTest Services in accordance with Customer’s subscription plan. LambdaTest grants to the Customer a limited non-exclusive, non-transferrable, right and license during the Term , solely for its internal business purposes and in accordance with the Documentation, to: (a) use the LambdaTest Services; (b) implement, configure, and, through its account administrator(s), permit its Permitted Users (as defined in Section 2.4 below) to access and use the LambdaTest Services up to any applicable limits or maximums; and (c) access and use the Documentation.

(b) The Customer represents and warrants that it and its Permitted Users are not, and will not be when using the LambdaTest Services, located in, under the control of, or a national or resident of a U.S. embargoed country or territory and are not a prohibited end user under Export Control Laws (as defined in Section 11.12). In case of any breach of this provision by Customer or its Permitted User(s), without prejudice to any other rights of LambdaTest under this Agreement and Law, LambdaTest shall be entitled to terminate this Agreement by written notice with immediate effect.

(c) Customer may assign and expressly authorize a Permitted User(s) as its agent to manage Customer’s account, and management of Customer’s account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s). Customer shall at all times be responsible for the acts and omissions of its Account Administrator(s).

(d) Except as expressly specified under this Agreement Customer will not and shall ensure that its Permitted Users do not (and do not permit any third party to): (i) use the LambdaTest Service (including the software used by LambdaTest to provide the LambdaTest Service) in any manner not expressly permitted under this Agreement; (ii) rent, lease, provide access to, resell, or sublicense the LambdaTest Services to a third party or provide the LambdaTest Services to a third party as a managed service; (iii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs of the software used by LambdaTest to provide the LambdaTest Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to LambdaTest); (iv) copy or modify the LambdaTest Services or any Documentation, or create any derivative work from any of the foregoing; (v) remove or obscure any proprietary or other notices contained in the LambdaTest Services (including any reports or data printed from the LambdaTest Services); (vi) frame and/or utilize framing techniques to enclose any trademark, logo, and/or other portion of the LambdaTest Services (including images, texts, page layout, form); (vii) use any metatags and/or other “hidden texts” using LambdaTest’s name and/or trademarks; (viii) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable and/or disproportionately large load on our (and/or our third party providers’) infrastructure and platform; (ix) use the LambdaTest Services for any unlawful purpose and/or to violate any federal, state or international law; (x) run any form of auto-responder and/or “spam” on the LambdaTest Services; and (xi) download of install software applications not intended for testing e.g. bitcoin mining, gaming servers and other illegitimate activities.

(e) If LambdaTest suspends or terminates the Customer’s account, the Customer will not subscribe for LambdaTest Services under a new account unless specifically allowed by LambdaTest. Customer agrees that LambdaTest shall not be liable to the Customer or to any third party for any such suspension and/ or termination of this Agreement, Customer’s account or any refusal of access.

2.2. Target Availability

LambdaTest will use commercially reasonable efforts to make the Services available with uptime of 99.8% for each calendar month (“Target Availability”). The calculation of uptime will not include unavailability to the extent caused by: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general internet problems, Force Majeure Events (as defined below); (c) Customer’s equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) LambdaTest’s Scheduled Maintenance (defined below) or reasonable emergency maintenance. “Scheduled Maintenance” means routine maintenance for which LambdaTest notifies Customer at least 2 (two) days in advance.

2.3. Support

LambdaTest provides break-fix support to its customers using automated (web+mobile) and manual tests that are done on LambdaTest Services or integrations supported on the LambdaTest Services. LambdaTest does not assist in writing tests or debugging new tests that have already been proven to work on a local ‘Selenium’ or ‘Appium’ server / grid. In order to provide appropriate support, LambdaTest may request and the Customer shall provide, demonstration(s) of the same test or share sample test script(s).

LambdaTest provides 24x5 (from 00:00 hrs Monday through 23:59 hrs Friday PST) support to Customers only over chat / emails with target first response within 24 (twenty-four) hours during the above support window. LambdaTest will have no obligation to provide support to the extent an incident arises from (a) use of the Services by Customer in a manner not authorized by or in non-compliance with, this Agreement or the applicable Documentation; (b) general internet problems, Force Majeure Event or other factors outside of LambdaTest’s reasonable control; (c) Customer’s equipment, software, network connections or other infrastructure; or (d) third party systems, acts or omissions.

2.4. Permitted Users

Access to and/ or use of LambdaTest Services is permitted only to Customer, Customer’s Affiliates and their respective employees and independent contractors (provided that they are not competitors of LambdaTest), (“Permitted User(s)”) solely for the purpose mentioned under Section 2.1(a) above. All obligations applicable under this Agreement to the Customer shall apply equally to each of the Permitted Users, and Customer shall ensure that each of the Permitted Users comply with such obligations. Customer shall at all times remain responsible to LambdaTest for all acts and omissions of the Permitted Users, including for any breach of the provisions of this Agreement by any Permitted User.

2.5. Privacy Practices

LambdaTest’s privacy practices regarding Personal Information stored using the LambdaTest Services are governed by the then-current version of the LambdaTest Privacy Policy (“Privacy Policy”) available at https://www.lambdatest.com/legal/privacy, as it is amended from time to time, and which is incorporated by reference herein.

3.1. Customer Content and Rights

As between the Parties, Customer will retain all rights, title and interest (including any and all Intellectual Property Rights) that Customer may have in and to the Customer Content as submitted to or generated by, the Customer through the LambdaTest Services. Subject to the terms of this Agreement, Customer hereby grants to LambdaTest a non-exclusive, worldwide, royalty-free license to use, copy, store, transmit, modify, create derivative works of and display the Customer Content solely to the extent required to provide the LambdaTest Services to Customer.

Customer will ensure that use of LambdaTest Services and Customer’s collection, usage, storage, transmission, and disclosure to LambdaTest of all Customer Content are at all times in compliance with Customer’s privacy policies and all applicable Laws. Customer is solely responsible for the accuracy and legality of all Customer Content.

Customer acknowledges that the Services are not designed for use with (and do not require) Personal Information included in the Customer Content. Customer specifically agrees not to use the Services to collect, store, process or transmit any Personal Information other than Account-Related Information and will not submit to the Services or LambdaTest any Customer Content containing any Personal Information. LambdaTest will have no liability under this Agreement for Personal Information included within Customer Content, or any security incident or breach regarding such Personal Information.

Customer represents and warrants to LambdaTest that Customer has all necessary rights, consents and permissions in relation to all Customer Content as required for the purposes contemplated in this Agreement (including granting LambdaTest the rights in Section 3.1), and that no Customer Content will violate or infringe (i) any third party Intellectual Property, publicity, privacy or other rights or (ii) any Laws.

Customer will not use the LambdaTest Services with any Customer Content that (i) is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate; (ii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iii) could otherwise cause damage to LambdaTest or any third party.

3.2. Storage & Removal

LambdaTest may delete and reset the test environment after each test conducted by the Customer using the Services. Customer specifically acknowledges that LambdaTest Service is not designed to or used for storage of Customer Content and that LambdaTest is not obliged to maintain a backup of any Customer Content except for Customer test execution data and related logs which may be stored for a period of 30 (thirty) days from the date of upload/creation.

4.1. Information Security

LambdaTest will maintain an information security program that incorporates administrative, physical, and technical safeguards designed to (a) ensure the security and integrity of the Test Execution Data and Account Information; (b) prevent unauthorized access to, or disclosure of, the Test Execution Data and Account Information; and (c) protect against threats, hazards and security incidents with respect to the Test Execution Data and Account Information, in each case, solely to the extent that LambdaTest hosts such Test Execution Data or Account Information. The Information Security Policy is located at https://www.lambdatest.com/trust/security#infosec

The terms of service of the privacy policy located at https://www.lambdatest.com/legal/privacy will govern all information or data collected through the LambdaTest website and platform.

4.2. Data Processing / Transfer

If Customer wishes to store, transmit, or otherwise process Personal Information using the LambdaTest Services or by transmitting it to LambdaTest, whether that is Account-Related Information or Customer Content, the Data Protection Addendum found at https://www.lambdatest.com/legal/data-processing-addendum shall be applicable for the processing of any Personal Information.

5. Ownership

5.1. Intellectual Property

Customer acknowledges and agrees that LambdaTest Services and API contain proprietary materials of LambdaTest (including the Platform and Documents). All present and future, Intellectual Property Right in the Platform, LambdaTest Services, APIs, Documentation, any improvements, design contributions, enhancements or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the LambdaTest Services, shall, at all times be and remain the sole and exclusive property of LambdaTest. Customer hereby acknowledges that it only has a limited right to access and use the LambdaTest Services under this Agreement and that no ownership rights are being conveyed under this Agreement. LambdaTest Services are offered as an on-line, hosted solution, and Customer shall have no right to obtain a copy of it (including copy of any software used for providing the LambdaTest Services).

5.2. Feedback

Customer may, from time to time, submit comments, questions, suggestions or other feedback relating to LambdaTest Services to LambdaTest (“Feedback”). Customer acknowledges that LambdaTest may freely use such Feedback in connection with any of its products or services without the need to pay compensation for any use of such Feedback. Feedback shall be treated as non-confidential and non-proprietary information.

6. Plan & Payment Terms

6.1. Subscription Plan

The prices, features, and options of the LambdaTest Services depend on the Subscription Plan selected as well as any changes instigated by Customer (“Subscription Plan”). LambdaTest does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features, usage limits and options in a particular Subscription Plan without prior notice. Customer shall not, and shall not permit others, to use the LambdaTest Services or allow access to them in a manner that circumvents contractual usage restrictions or matrices set forth in these Terms, applicable Subscription Plan.

6.2. Payment Terms

(a) Customer hereby authorizes LambdaTest (or its agent) to charge its payment method on a recurring basis as per Subscription Plan (“Authorization”) for: (a) the applicable Subscription Plan charges; (b) any and all applicable taxes; and (c) any other charges incurred in connection with Customer’s use of the Lambdatest Services.

(b) LambdaTest will provide billing and usage information in a format determined by LambdaTest. LambdaTest reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.

(c) All fees and payments made by Customer to LambdaTest are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of LambdaTest. Customer hereby confirms that LambdaTest can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for tax purposes.

7. Term And Termination

7.1. Term

With reference to LambdaTest Services, the Term shall begin on the date the Customer accepts it and continues until the Customers Subscription Plan expires or its use of the LambdaTest Services ceases (including as a result of termination in accordance with the Terms), whichever is later.

Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to LambdaTest Services or by contacting us at support@lambdatest.com ; (c) LambdaTest declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending upon the Subscription Term (“Renewal Term”).

7.2. Termination by LambdaTest

LambdaTest may terminate this Agreement or suspend Customer’s account and provision of LambdaTest Services, in LambdaTest’s sole discretion, by written notice to Customer if: (a) Customer fails to pay any amount owed to LambdaTest within the agreed time period; (b) Customer or any Permitted User breaches any provision of this Agreement, the Documentation or violates any published policy applicable to the LambdaTest Services; (c) if, in LambdaTest’s sole discretion, continued use of the LambdaTest Services by the Customer (or its Permitted Users) creates legal risk for LambdaTest or presents a threat to the security of the LambdaTest Services or LambdaTest’s customers.

7.4. Effect of Termination

Upon any expiration or termination, the rights granted under this Agreement to the Customer shall immediately terminate and the Customer will immediately cease any and all use of and access to the LambdaTest Services and delete (or, at LambdaTest’s request, return) any and all copies of the Documentation, any LambdaTest passwords or access codes and any other LambdaTest confidential information in Customer’s possession. Any Fees accrued but not paid by the Customer under this Agreement shall become immediately due and payable upon termination of the Agreement.

7.5. Survival

The following Sections will survive any expiration or termination of this Agreement: 5 (Ownership), 6.2 (Payment Terms), 7 (Term and Termination), 8 (Warranties and Disclaimers), 9 (Limitation of Remedies & Damages), 10 (Confidential Information) and 11 (General Terms).

7.6 Accrued Rights

Termination of this Agreement for any reason shall not release either Party hereto from any liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.

8. Warranties And Disclaimers

8.1. Each Party represents and warrants to the other that: (i) it has all necessary authority and approvals required for it to enter into this Agreement and perform its obligations hereunder; (ii) the execution and performance of this Agreement by it will not violate the terms of any Law or agreement to which it is bound; (iii) it shall at all times comply with all applicable Laws.

8.2. LambdaTest represents and warrants that use and access by the Customer of the LambdaTest Services in accordance with the terms of this Agreement shall not infringe the Intellectual Property Rights of a third party. Customer’s sole remedy and LambdaTest’s sole liability for a breach of this warranty is to defend and indemnify Customer under Section 9.1 below.

8.3. LambdaTest Services and Documentation are provided “as is” and “as available” without warranty of any kind. Except as expressly set forth in this Agreement. LambdaTest makes no representation or warranty of any kind, whether express, implied (either in fact or by operation of law), or statutory, with respect to any matter whatsoever. LambdaTest expressly disclaims all implied warranties or conditions of non-infringement, title, quality, accuracy, and fitness for any particular purpose. LambdaTest exercises no control over and expressly disclaims any liability arising out of or based upon Customer’s use of the LambdaTest Services and any delays, delivery failures, or any other loss or damage resulting from (i) the transfer of data over public communications networks and facilities, including the internet; (ii) any loss of Customer Data or content; or (ii) any delay or delivery failure on the part of any other service provider not contracted by LambdaTest. Customer acknowledges that LambdaTest cannot guarantee the absolute prevention of cyber-attacks such as hacking, spyware, and viruses.

9. Indemnity and Limitation of Liability

9.1. Indemnification

9.1.1 Indemnification by LambdaTest

LambdaTest will indemnify Customer from and against any third-party Claims, arising directly from: (a) the breach of LambdaTest’s warranty provided under Section 8.2 above and (b) any breach by LambdaTest of any of its confidentiality obligations under this Agreement.

9.1.2. Indemnification by Customer

Customer will indemnify LambdaTest, its Affiliates, its officers, directors and employees from and against any third-party Claims, arising directly or indirectly from: (a) any failure or alleged failure by Customer and/ or any Permitted Users to comply with any applicable Laws or regulations; (b) breach of Customer’s representation provided under Section 8.1 and its obligations contained in Section 2.1; (c) any breach by Customer and/or any Permitted User of their confidentiality obligations under this Agreement.

9.2 Consequential Damages Waiver

Neither Party shall have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of the possibility of such damages in advance.

9.3. Liability Cap

Each Party’s aggregate liability to the other Party under this Agreement shall not exceed the amount actually paid or payable by Customer under this Agreement during the twelve (12) month period preceding the date of the first event giving rise to liability. The existence of more than one claim shall not enlarge this limit. The foregoing limit shall not apply in respect of claims arising out of either Party’s indemnification obligtions and Customer’s payment obligation.

10. Confidential Information

10.1 Each Party (“Receiving Party”) shall keep all Confidential Information secure and confidential and ensure that its officers, employees, agents and advisers keep confidential, all information and materials provided by the other Party (“Disclosing Party”). The Receiving Party shall use the Disclosing Party’s Confidential Information only for the purposes expressly permitted under this Agreement and shall protect such Confidential Information in the same manner that it protects its own confidential information but in no event less than a reasonable degree of care. It is clarified that LambdaTest Services and Documentation shall be deemed to be Confidential Information of LambdaTest.

10.2 The Receiving Party may only disclose the Confidential Information to those of its Representatives who need to know the Confidential Information, provided that:

• it informs such Representatives of the confidential nature of the Confidential Information before disclosure and shall ensure that each such Representative is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if the Representative was a party to this Agreement; and
• at all times, the Receiving Party is responsible for its Representatives' compliance with the obligations set out in this Agreement.

10.3 Exclusions: The obligation under Section 10.1 above shall not apply if and to the extent:

• the information is or becomes freely available in the public domain (other than due to breach of this Agreement);
• the disclosure is required by law, order of any court, governmental or regulatory body;
• the disclosure or use is required for the purpose of any proceedings arising out of this Agreement; or
• the disclosure of information by a Receiving Party to its directors, employees or professional advisers on a need-to-know basis, provided that such persons are duly bound by written obligation of confidentiality and non-disclosure at least as stringent as those provided under this Agreement;
• information that is independently developed by the Receiving Party without the use of Disclosing Party’s Confidential Information;

provided that prior to disclosure of any information as required by law, order of any court, governmental or regulatory body, the Receiving Party shall promptly notify the Disclosing Party of such requirement with a view to providing the Disclosing Party an opportunity to contest or limit such disclosure.

10.4 Return of Confidential Information: In case of termination or expiry of this Agreement, each Party shall promptly:

• return or destroy, at the Disclosing Party’s option, all Confidential Information of the Disclosing Party including all copies thereof;
• cease use of the Confidential Information of the other Party and thereafter not use the Confidential Information in any manner whatsoever;
• supply a certificate signed by its senior officer confirming that the requirements of this Section 10.3 have been fully complied with.

10.5 Duration of Confidentiality Obligations: The obligations contained in this Section 10 shall survive expiry or termination of this Agreement.

11. General Terms

11.1. Third Party Content

LambdaTest may provide, or third parties may provide on LambdaTest’s Services, links to other third-party web sites, services, or resources that are beyond LambdaTest’s control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided. LambdaTest is not responsible for the content on the internet or web pages that are located outside the Lambdatest Services or posts of user content.

11.2. Assignment

This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns. Neither party may assign this Agreement or its rights and obligations hereunder without the advance written consent of the other party other than where such assignment is pursuant to any merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement in breach of this provision will be null and void.

11.3. Severability

The unenforceability of any provision or provisions of this Agreement shall not render unenforceable or impair other provisions of this Agreement. If any provision is declared to be invalid or unenforceable in whole or in part, Parties shall attempt to amend such provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the Parties.

11.4. Governing Law; Jurisdiction and Venue

This Agreement will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising hereunder shall be resolved in a state or federal court located in San Mateo County, California, USA, and the Parties hereby consent to the exclusive jurisdiction of such courts.

11.5. Attorneys’ Fees and Costs

The prevailing Party in any action to enforce the terms of this Agreement will be entitled to recover its attorneys’ fees and costs incurred in connection with such action.

11.6. Notice

While the Parties may communicate by any means in the performance of the terms of this Agreement, any notice of termination or other legal notice to a party shall be effective only if it is in writing and sent using (a) LambdaTest Services; (b) nationally-known courier service that confirms delivery in writing or email, in which case notice will be deemed given upon receipt; or (c) registered or certified mail, postage prepaid and return receipt requested, in which case notice is deemed given the third business day after such notice is deposited in the mail. Such notices can be sent to the Customer at the address set forth in Customer’s Account and to LambdaTest at support@lambdatest.com. Email notices are effective only if the sender receives confirmation of receipt from the recipient.

11.7. Non-Solicitation

Customer shall not, during the Term of this Agreement and for a period of 1 (one) year thereafter, solicit for employment or engagement (whether as an employee, independent contractor or consultant) any LambdaTest employee or consultant.

11.8 Amendments; Waivers

No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each Party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede this Agreement.

11.9. Entire Agreement

The terms contained herein captures the complete understanding of the parties with respect to the subject matter herein and supersedes and cancels all previous written and oral agreements and communications relating thereto.

11.10. Force Majeure

Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay money) if the delay or failure is directly attributable to unforeseen events that occur after this Agreement becoming effective and that are beyond the reasonable control of such Party (each, a “Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, pandemic, natural disaster, failure or diminishment of power or data or telecommunications networks or services.

11.11. Independent Contractors

This Agreement does not create relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf.

11.12. Export Control

In its use of the LambdaTest Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use LambdaTest Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the LambdaTest Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

11.13. Government End-Users

Elements of the LambdaTest Services are commercial computer software. If the Permitted User or Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the LambdaTest Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. LambdaTest Services are developed fully at private expense.

11.14. Marketing

LambdaTest may use Customer’s name and logo on LambdaTest’s website and other marketing materials solely to identify Customer as a Customer of LambdaTest (without revealing any CI).

11.15. Subcontractors

LambdaTest may use the services of subcontractors for performance of services under this Agreement, provided that LambdaTest remains responsible for: (a) compliance of any such subcontractor with the terms of this Agreement; and (b) for the overall performance of the Services as required under this Agreement.