Master Subscription Agreement

2. TTM RESPONSIBILITIES

Provision of Purchased Services. TTM will:

• make the Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms and Documentation;
• provide applicable TTM standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased;
• use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for the following:
• (i) planned downtime (of which TTM shall give advance electronic notice); and
• (ii) any unavailability caused by circumstances beyond TTM’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving TTM employees), Internet service provider failure or delay, Non-TTM Application, or denial of service attack; and
• provide the Services in accordance with laws and government regulations applicable to TTM’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.

Protection of Customer Data. TTM will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms of the data processing addendum at https://www.thetestmart.com/dpa (“DPA”) posted as of the Effective Date are hereby incorporated by reference. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by TTM, the data transfer mechanisms set out in the DPA, including the Standard Contractual Clauses where applicable, shall apply. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, TTM will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, TTM will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

Artificial Intelligence Features. The Services include features that use artificial intelligence and machine learning, including features that create, generate, interpret, maintain and execute tests (“AI Features”). (a) No training on Customer Data. TTM does not use Customer Data to train, retrain, fine-tune or otherwise improve any artificial intelligence or machine learning model, whether TTM’s own or a third party’s, and does not permit any third-party model provider to do so. AI Features process Customer Data only to provide the Services to Customer. (b) Third-party models. AI Features may be delivered using foundation models operated by TTM’s sub-processors identified in the DPA. TTM contractually requires those providers not to use Customer Data to train their models and not to retain Customer Data beyond what is needed to provide the Services. (c) Output. Content generated by AI Features from Customer Data (“Output”) is Customer Data. Output may contain errors. Customer is responsible for reviewing Output before relying on it, and AI Features do not replace Customer’s own validation, testing and release decisions. (d) Service data. TTM may use de-identified and aggregated usage, performance and diagnostic data derived from Customer’s use of the Services, which does not identify Customer, its Users or any individual and is not Customer Data, to operate, secure and improve the Services, including the AI Features.

TTM Personnel. TTM will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with TTM’s obligations under this Agreement, except as otherwise specified in this Agreement.

Free Services. TTM may make certain Services available at no charge, subject to the usage limits described in the Documentation. Such Free Services are provided “as is” without warranties or indemnities. TTM may suspend or terminate Free Services at any time in its discretion. It is the Customer’s responsibility to export any Customer Data prior to termination. Customer remains liable for damages arising from its use of Free Services and for any breach of this Agreement.

3. USE OF SERVICES AND CONTENT

Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, Customer understands that:

• Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or online purchasing portal.
• Additional subscriptions for purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the remaining portion of that term.
• Any added subscriptions will terminate on the same date as the underlying subscriptions.

Customer agrees that its purchases are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by TTM regarding future functionality or features.

Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, TTM may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding TTM’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon TTM’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

Customer Responsibilities. Customer will:

• Be responsible for Users’ compliance with this Agreement, the Documentation and Order Forms.
• Be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, and for the interoperation of any Non-TTM Applications with which Customer uses the Services or Content.
• Use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content and notify TTM promptly of any such unauthorized access or use.
• Use Services and Content only in accordance with this Agreement, the Documentation, Order Forms and applicable laws and government regulations.
• Comply with the terms of service of any Non-TTM Applications with which Customer uses the Services or Content.

Any use of the Services in breach of the foregoing by Customer or its Users that in TTM’s judgment threatens the security, integrity or availability of TTM’s services may result in TTM’s suspension of the Services. TTM will use commercially reasonable efforts to provide Customer with notice and an opportunity to remedy such violation or threat before any such suspension.

Usage Restrictions. Customer will not:

• make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation;
• sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering;
• use a Service or Non-TTM Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
• use a Service or Non-TTM Application to store or transmit Malicious Code;
• interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;
• attempt to gain unauthorized access to any Service or Content or its related systems or networks;
• permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of TTM’s intellectual property except as permitted under this Agreement, an Order Form, or the Documentation;
• modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof;
• copy Content except as permitted herein or in an Order Form or the Documentation;
• frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; or
• except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to:
• (i) build a competitive product or service;
• (ii) build a product or service using similar ideas, features, functions or graphics of the Service;
• (iii) copy any ideas, features, functions or graphics of the Service; or
• (iv) determine whether the Services are within the scope of any patent.

Removal of Content and Non-TTM Applications. If Customer receives notice that Content or a Non-TTM Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the acceptable use requirements in the Documentation, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in TTM’s judgment continued violation is likely to reoccur, TTM may disable the applicable Content, Service and/or Non-TTM Application. If requested by TTM, Customer shall confirm such deletion and discontinuance of use in writing and TTM shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if TTM is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, TTM may discontinue Customer’s access to Content through the Services.

4. NON-TTM PRODUCTS AND SERVICES

Non-TTM Applications Generally. TTM or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-TTM Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-TTM provider, product or service is solely between Customer and the applicable Non-TTM provider. TTM does not warrant or support Non-TTM Applications or other Non-TTM products or services, whether or not they are designated by TTM as “certified” or otherwise, unless expressly provided otherwise in an Order Form. TTM is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-TTM Application or its provider.

Integration with Non-TTM Applications. The Services may contain features designed to interoperate with Non-TTM Applications. TTM cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-TTM Application ceases to make the Non-TTM Application available for interoperation with the corresponding Service features in a manner acceptable to TTM.

5. FEES AND PAYMENT

Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form:

• fees are based on Services and Content subscriptions purchased; additional fees will be charged where Customer exceeds usage levels based on fees specified in Order Forms;
• payment obligations are non-cancelable, and fees paid are non-refundable; and
• quantities purchased cannot be decreased during the relevant subscription term.

Invoicing and Payment. Customer will provide TTM with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to TTM. If Customer provides credit card information to TTM, Customer authorizes TTM to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, TTM will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Excess usage will be calculated and billed monthly and may be waived at the discretion of TTM. Customer is responsible for providing complete and accurate billing and contact information to TTM and notifying TTM of any changes to such information.

Overdue Charges. If any invoiced amount is not received by TTM by the due date, then without limiting TTM’s rights or remedies:

• those charges may accrue late interest at the rate of 1.5 % of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and/or
• TTM may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.

Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized TTM to charge to Customer’s credit card), TTM may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, TTM will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.

Payment Disputes. TTM will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

Taxes. TTM’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If TTM has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, TTM will invoice Customer and Customer will pay that amount unless Customer provides TTM with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TTM is solely responsible for taxes assessable against it based on its income, property and employees.

6. PROPRIETARY RIGHTS AND LICENSES

Reservation of Rights. Subject to the limited rights expressly granted hereunder, TTM, its Affiliates, its licensors and content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.

License by Customer to TTM. Customer grants TTM, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-TTM Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for TTM to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-TTM Application with a Service, Customer grants TTM permission to allow the Non-TTM Application and its provider to access Customer Data and information about Customer’s usage of the Non-TTM Application as appropriate for the interoperation of that Non-TTM Application with the Service. Subject to the limited licenses granted herein, TTM acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-TTM Application or such program code.

License by Customer to Use Feedback. Customer grants to TTM and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of TTM’s or its Affiliates’ services.

Federal Government End Use Provisions. TTM provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

7. CONFIDENTIALITY

Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of TTM includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that:

• is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
• was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
• is received from a third party without breach of any obligation owed to the Disclosing Party; or
• was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional TTM services.

Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to:

• not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and
• except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, TTM may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-TTM Application provider to the extent necessary to perform TTM’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

TTM Warranties. TTM warrants that during an applicable subscription term:

• this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data;
• TTM will not materially decrease the overall security of the Services;
• the Services will perform materially in accordance with the applicable Documentation; and
• subject to the “Integration with Non-TTM Applications” section above, TTM will not materially decrease the overall functionality of the Services.

For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” section.

DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

9. MUTUAL INDEMNIFICATION

Indemnification by TTM. TTM will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer” ), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by TTM in writing of, a Claim Against Customer, provided Customer:

• promptly gives TTM written notice of the Claim Against Customer;
• gives TTM sole control of the defense and settlement of the Claim Against Customer (except that TTM may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability); and
• gives TTM all reasonable assistance, at TTM’s expense.

If TTM receives information about an infringement or misappropriation claim related to a Service, TTM may in its discretion and at no cost to Customer:

• (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching TTM’s warranties under “TTM Warranties” above;
• (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement; or
• (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.

The above defense and indemnification obligations do not apply if:

• the allegation does not state with specificity that the Services are the basis of the Claim Against Customer;
• a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by TTM, if the Services or use thereof would not infringe without such combination;
• a Claim Against Customer arises from Services under an Order Form for which there is no charge; or
• a Claim against Customer arises from Content, a Non-TTM Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.

Indemnification by Customer. Customer will defend TTM and its Affiliates against any claim, demand, suit or proceeding made or brought against TTM by a third party alleging that:

• any Customer Data or Customer’s use of Customer Data with the Services;
• a Non-TTM Application provided by Customer; or
• the combination of a Non-TTM Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against TTM” ), and will indemnify TTM from any damages, attorney fees and costs finally awarded against TTM as a result of, or for any amounts paid by TTM under a settlement approved by Customer in writing of, a Claim Against TTM, provided TTM:
• (i) promptly gives Customer written notice of the Claim Against TTM;
• (ii) gives Customer sole control of the defense and settlement of the Claim Against TTM (except that Customer may not settle any Claim Against TTM unless it unconditionally releases TTM of all liability); and
• (iii) gives Customer all reasonable assistance, at Customer’s expense.

The above defense and indemnification obligations do not apply if a Claim Against TTM arises from TTM’s breach of this Agreement, the Documentation or applicable Order Forms.

Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

10. LIMITATION OF LIABILITY

LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. TERM AND TERMINATION

Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least sixty (60) days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at TTM’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

Termination. A party may terminate this Agreement for cause:

• upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or
• if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Refund or Payment upon Termination. If Customer terminates this Agreement due to TTM’s material breach that remains uncured, TTM will refund any prepaid fees covering the period after the effective date of termination. In all other cases, fees are non-refundable, and Customer remains obligated to pay any fees due prior to termination.

Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Removal of Content and Non-TTM Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the sections titled “Protection of Customer Data” and “Artificial Intelligence Features” will survive any termination or expiration of this Agreement for so long as TTM retains possession of Customer Data.

12. GENERAL PROVISIONS

Export Compliance. The Services, Content, other TTM technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. TTM and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

Entire Agreement and Order of Precedence. This Agreement is the entire agreement between TTM and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:

• the applicable Order Form;
• this Agreement; and
• the Documentation.

Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, either party may assign this Agreement without such consent (i) to an Affiliate, or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section shall be void. Subject to the foregoing, this Agreement will be binding upon and will benefit the parties, their respective successors, and permitted assigns.

Notices, Governing Law, and Venue. This Agreement is governed by, and must be interpreted in accordance with, the laws of Delaware. Each party submits to the exclusive jurisdiction of the State of Delaware in relation to any dispute connected with this Agreement. Notices should be delivered by personal delivery or nationally recognized carriers, or by email where digitally applicable.

Notices to TTM: The TestMart, Inc., 382 NE 191st Street, PMB 55807, Miami, FL 33179; legal@thetestmart.com. Notices to Customer will be sent to the contacts designated by Customer.

Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon:

• personal delivery;
• the second business day after mailing; or
• except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

Local Law Requirements. For Customers located outside the United States, this Agreement remains governed by the law and subject to the jurisdiction stated above, except to the extent that mandatory provisions of the Customer’s local law require otherwise.

Purchases through Authorized Resellers. If Customer purchases subscriptions to the Services through a reseller authorized by TTM (a “Reseller”), then: (a) the Reseller’s order placed with TTM for Customer is the Order Form for purposes of this Agreement; (b) Customer will pay the Reseller, not TTM, and the “Fees and Payment” section does not apply between Customer and TTM, except that TTM may suspend or terminate the Services if the Reseller fails to pay TTM for Customer’s subscription, in which case Customer’s remedies are against the Reseller; (c) the Reseller may include the Services in its own service offerings and provide first-line support, and the restriction on resale in the “Usage Restrictions” section does not apply to the Reseller’s authorized resale to Customer; (d) any commitments made by the Reseller that exceed this Agreement and the Documentation are the Reseller’s alone and are not binding on TTM; and (e) all other terms of this Agreement, including the DPA, apply directly between Customer and TTM. TTM may also provide the Services to Customer under the Reseller’s own agreement with Customer where that agreement incorporates terms no less protective of TTM than this Agreement.