Terms of Service

2.1. Access

(a) Subject to the terms of this Agreement, TestMu will provide Customer access to the TestMu Services in accordance with Customer’s subscription plan. TestMu grants to the Customer a limited non-exclusive, non-transferrable, non-sublicensable right and license during the Subscription Term (as defined below), solely for its internal business purposes and in accordance with the Documentation, to: (i) use the TestMu Services; (ii) implement, configure, and, permit its Permitted Users (as defined in Section 2.4 below) to access and use the TestMu Services up to any applicable limits or maximums; and (iii) access and use the Documentation. TestMu has and will retain sole control over the operation, provision, maintenance and management of the TestMu Services, including the location(s) where any of the Services are performed. Customer shall provide all cooperation and assistance as TestMu may reasonably request to enable Customer to exercise its rights hereunder.

(b) The Customer represents and warrants that it and its Permitted Users are not, and will not be when using the TestMu 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 TestMu under this Agreement and Law, TestMu 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 TestMu Service (including the Software used by TestMu to provide the TestMu Service) in any manner not expressly permitted under this Agreement; (ii) rent, lease, provide access to, resell, or sublicense the TestMu Services to a third party or provide the TestMu 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 TestMu to provide the TestMu Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to TestMu); (iv) copy or modify the TestMu 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 TestMu Services (including any reports or data printed from the TestMu Services); (vi) frame and/or utilize framing techniques to enclose any trademark, logo, and/or other portion of the TestMu Services (including images, texts, page layout, form); (vii) use any metatags and/or other “hidden texts” using TestMu'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 TestMu 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 TestMu Services; and (xi) download of install Software or applications not intended for testing e.g. bitcoin mining, gaming servers and other illegitimate activities.

(e) If TestMu suspends or terminates the Customer’s Account, the Customer will not subscribe for TestMu Services under a new account unless specifically allowed by TestMu. Customer agrees that TestMu 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.

(f) Customer may opt to use AI-powered products and services made available by TestMu as part of the TestMu Services ("AI Services”). Such AI Services shall be subject to the AI terms accessible at https://www.testmuai.com/legal/ai-terms

2.2. Target Availability

TestMu 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) TestMu's Scheduled Maintenance (defined below) or reasonable emergency maintenance. “Scheduled Maintenance” means routine maintenance for which TestMu notifies Customer at least 7 (seven) days in advance.

2.3. Support

TestMu provides break-fix support to its customers using automated (web+mobile) and manual tests that are done on TestMu Services or integrations supported on the TestMu Services. TestMu 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, TestMu may request, and the Customer shall provide, demonstration(s) of the same test or share sample test script(s).

TestMu provides 24x7 (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. TestMu 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 TestMu 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 TestMu Services is permitted only to Customer, Customer’s Affiliates and their respective employees and independent contractors (provided that they are not competitors of TestMu), (“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 TestMu for all acts and omissions of the Permitted Users, including for any breach of the provisions of this Agreement by any Permitted User.

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 TestMu Services. Subject to the terms of this Agreement, Customer hereby grants to TestMu 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 TestMu Services to Customer. Additionally, TestMu may monitor and use for its internal purposes any information relating to Customer’s and Permitted Users’ usage of the Software and Services, for example, number of Permitted Users, usage levels, nature and type of application usage, transactions processed, configurations, and reports processed using the Software and Services (hereinafter, “Analytics”).

Customer will ensure that use of TestMu Services and Customer’s collection, usage, storage, transmission, and disclosure to TestMu 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 TestMu any Customer Content containing any Personal Information. TestMu 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 TestMu 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 TestMu 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 TestMu 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 TestMu or any third party.

3.2. Storage & Removal

TestMu may delete and reset the test environment after each test conducted by the Customer using the Services. Customer specifically acknowledges that TestMu Service is not designed to or used for storage of Customer Content and that TestMu 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

TestMu will maintain an information security program that incorporates administrative, physical, and technical safeguards designed to (a) ensure the security and integrity of the Customer Content including Personal Information; (b) prevent unauthorized access to, or disclosure of, the Customer Content; and (c) protect against threats, hazards and security incidents with respect to the Customer Content. The Information Security Policy is located at https://www.testmuai.com/trust/security#infosec

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

4.2. Data Processing / Transfer

If Customer wishes to store, transmit, or otherwise process Personal Information using the TestMu Services or by transmitting it to TestMu, whether that is Account-Related Information or Customer Content, the Data Protection Addendum found at https://www.testmuai.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 TestMu Services contain proprietary materials of TestMu or its licensors (including the Software and Documentation). All present and future, Intellectual Property Right in the TestMu Services (including, Software, TestMu Services, Third Party AI Tools, APIs and Documentation), Feedback (as defined below), Analytics, Updates and any improvements, design contributions, configurations, customizations, enhancements, updates or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the TestMu Services, shall, at all times be and remain the sole and exclusive property of TestMu. Customer hereby acknowledges that it only has a limited right to access and use the TestMu Services under this Agreement and that no ownership rights are being conveyed under this Agreement. TestMu Services are offered as an on- line, hosted solution, and Customer shall have no right to obtain a copy of it (including copy of the Software used for providing the TestMu Services). TestMu shall retain all right, title interest in any deliverables or work product created or developed under the Agreement and no deliverable or work product shall be deemed a “work made for hire” as such term is defined under Section 101 of the U.S. Copyright Act or any other equivalent law in any jurisdiction.

5.2. Feedback

Customer may, from time to time, submit comments, questions, suggestions or other feedback relating to TestMu Services to TestMu (“Feedback”). Customer acknowledges that TestMu 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 TestMu Services depend on the subscription plan selected as well as any changes instigated by Customer (“Subscription Plan”). TestMu 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 TestMu 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 TestMu (or its agent) to charge its payment method on a recurring basis as per Subscription Plan for: (i) the applicable Subscription Plan charges; (ii) any and all applicable taxes; and (iii) any other charges incurred in connection with Customer’s use of the TestMu Services.

(b) TestMu will provide billing and usage information in a format determined by TestMu. TestMu 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 TestMu 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 TestMu. Customer hereby confirms that TestMu 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.

(d) Customer shall make all payments without any set offs, withholdings, or deduction of any kind. Invoices that remain unpaid beyond the payment due date shall be subject to an interest equal to 1.5% per month of the amount due or the maximum amount allowed by law. Additionally, Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by TestMu to collect any amount that is not paid by Customer when due. Amounts due to TestMu may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from TestMu.

7. Term And Termination

7.1. Term

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

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 Subscription Plan: (a) you terminate your Account by providing thirty (30) days’ prior written notice; (b) you set your Account not to auto-renew by logging in to TestMu Services or by contacting us at [email protected]; (c) TestMu 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.

7.2. Termination by TestMu

TestMu may terminate this Agreement or suspend Customer’s Account and provision of TestMu Services, in TestMu's sole discretion, by written notice to Customer if: (a) Customer fails to pay any amount owed to TestMu 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 TestMu Services; (c) if, in TestMu's sole discretion, continued use of the TestMu Services by the Customer (or its Permitted Users) creates legal risk for TestMu or presents a threat to the security of the TestMu Services or TestMu'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 TestMu Services and delete (or, at TestMu's request, return) any and all copies of the Software, APIs, Documentation, any TestMu passwords or access codes and any other TestMu Confidential Information or TestMu property 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), 8.3 (Disclaimers), 9 (Indemnity and Limitation of Liability), 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. A. TestMu represents and warrants that use and access by the Customer of the TestMu 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 TestMu's sole liability for a breach of this warranty is to defend and indemnify Customer under Section 9.1 below. B. TestMu further warrants that the Services shall be provided in a professional manner according to the terms and conditions of this Agreement.

8.3. TestMu SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. TestMu 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. TestMu EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TestMu EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OF THE TestMu 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 TestMu. CUSTOMER ACKNOWLEDGES THAT TestMu CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES.

TestMu SERVICES:NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TestMu SERVICES ARE PROVIDED “AS IS” AND ON “AS AVAILABLE” BASIS. TestMu DOES NOT MAKE ANY REPRESENTATION OR PROVIDE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING TestMu SERVICES OR ANY THIRD-PARTY AI TOOL, NOR CAN TestMu ENSURE OR BE RESPONSIBLE OR HAVE ANY LIABILITY, WHATSOEVER, FOR THE ACCURACY, COMPLETENESS, UNIQUENESS, RELIABILITY, SUITABILITY OR EFFICACY OF THE AI OUTPUT. CUSTOMER ACCEPTS THAT ANY USE OF AI OUTPUTS FROM TestMu SERVICES SHALL BE AT CUSTOMER’S SOLE RISK AND CUSTOMER WILL NOT RELY ON AI OUTPUT AS A SOLE SOURCE OF TRUTH OR FACTUAL INFORMATION, OR AS A SUBSTITUTE FOR PROFESSIONAL ADVICE.

9. Indemnity and Limitation of Liability

9.1. Indemnification

9.1.1 Indemnification by TestMu

TestMu will indemnify Customer from and against any third-party Claims, arising directly from the breach of TestMu's warranty provided under Section 8.2A above. TestMu shall have no liability for any Claim based on (a) the Customer Content, (b) modification of TestMu Services or the Software not authorized by TestMu, (c) access to or use of the Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by TestMu; (d) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of TestMu or (e) use of TestMu Services other than in accordance with the Documentation and this Agreement. TestMu may, at its sole option and expense, procure for Customer the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date. The indemnification obligation set forth herein shall be the sole and exclusive remedy of the Customer with respect to any Claims of infringement of Intellectual Property Rights of a third party.

9.1.2. Indemnification by Customer

Customer will indemnify TestMu, 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; or (c) breach of Customer’s obligations contained in Section 2.1(d).

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, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING LIMIT SHALL NOT APPLY WITH RESPECT TO THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 9.1 OR FOR CLAIMS ARISING OUT OF (I) GROSS NEGLIGENCE AND WILFUL MISCONDUCT, (II) BREACH OF CONFIDENTIALITY OBLIGATIONS, (III) CUSTOMER’S PAYMENT OBLIGATION AND (IV) BREACH OF SECTION 2.1 (d).

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 WITH RESPECT TO THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 9.1 OR FOR CLAIMS ARISING OUT OF (I) GROSS NEGLIGENCE AND WILFUL MISCONDUCT, (II) BREACH OF CONFIDENTIALITY OBLIGATIONS, (III) CUSTOMER’S PAYMENT OBLIGATION AND (IV) BREACH OF SECTION 2.1 (d).

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 TestMu Services and Documentation shall be deemed to be Confidential Information of TestMu.

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 information was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with the Agreement;
• the information as or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
• information that is independently developed by the Receiving Party without the use of Disclosing Party’s Confidential Information;

If the Receiving Party is compelled by applicable law, court order or by any government or regulatory body to disclose any Confidential Information, then, to the extent permitted by applicable law, Receiving Party shall, prior to disclosure of any information, 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 10.4 have been fully complied with.

11. General Terms

11.1. Third Party Content

TestMu may provide, or third parties may provide on TestMu's Services, links to other third-party web sites, services, or resources that are beyond TestMu'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. TestMu IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE TestMu 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. Equitable Remedies

The Parties agree that breach of confidentiality obligations hereunder or breach of Intellectual Property Rights by one Party may result in immediate and irreparable harm to the other Party and that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the non-breaching Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.

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) TestMu 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 TestMu at [email protected]. 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 TestMu 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 along with any order form of other document that references these Terms, 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 TestMu 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 TestMu Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the TestMu Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

11.13. Government End-Users

Elements of the TestMu 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 TestMu 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. TestMu Services are developed fully at private expense.

11.14. Marketing

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

11.15. Subcontractors

TestMu may use the services of subcontractors for performance of services under this Agreement, provided that TestMu 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.