Terms of Use

⭐ PLEASE READ THIS MASTER SERVICES AGREEMENT (“MSA”) AND APPLICABLE ADDITIONAL TERMS (TOGETHER, THIS “AGREEMENT”) CAREFULLY BEFORE INSTALLING AND USING THE SOFTWARE OR ACCESSING ANY LOGIGEAR TESTARCHITECT SERVICES (“CLOUD SERVICES”). BY ACCEPTING THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT FOR YOUR ORGANIZATION. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE, AND DO NOT ACCESS ANY CLOUD SERVICES.

This Agreement is made and entered into by and between LogiGear Corporation (“LogiGear”) and the person or organization downloading, installing, or using the Software or accessing the Cloud Services (“Customer”).

LogiGear and Customer are each referred to herein as a “Party” and collectively as the “Parties.”

1. Definitions

In this Agreement, the following terms have the meanings set forth in this Section 1.

(i) “Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise.

(ii) “Cloud Services” refers to TestArchitect features accessible via the internet, including but not limited to hosted test execution environments, remote test agents, License Management Service, web-based IDEs, dashboards, and related APIs.

(iii) “Customer Content” means Content entered by Customer or any user into Cloud Services and any output generated by Customer or any user through use of such Cloud Services based on such Content, excluding any Third Party Content or other Content owned or controlled by LogiGear or its Affiliates or their respective licensors and made available by LogiGear or its Affiliates through or within Cloud Services.

(iv) “Documentation” means the instructions for use, learning materials, technical and functional documentation, and API information made available by LogiGear with the applicable Offering, in print, online, or embedded as part of a help function, which may be updated by LogiGear from time to time.

(v) “Floating License” is a type of license under which all functionalities of the Software may be used on one network by different devices at the same time up to the number of floating seats licensed. The number of running instances of the Software at any one time may not exceed the number of floating seats licensed.

(vi) “License Account” means a unique account that enables a Customer to run the Software. Only LogiGear and/or its representatives are permitted to create License Accounts for the Software.

(vii) “License Server” means a server part of TestArchitect that enables administration of granted licenses.

(viii) “Node-Locked License” is a type of license under which all functionalities of the Software are licensed for use on one computer or computing device at a time. Under a Node-Locked License, the number of concurrent running instances of the Software may not exceed the number of licenses held by the Customer.

(ix) “Offering” means an individual offering, made available by LogiGear and identified in an Order, which consists of Cloud Services, Software or Professional Services, or a combination of any of the foregoing, and any associated maintenance and support services and documentation.

(x) “Order” means an order form (Order Form) or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Offering(s) ordered by Customer and any associated fees, (ii) has been agreed by Customer by manual or electronic signatures or through an electronic system specified by LogiGear, and (iii) is accepted by LogiGear.

(xi) “Professional Services” means training, consulting, engineering, or other professional services provided by or on behalf of LogiGear under this Agreement pursuant to an Order, excluding Cloud Services.

(xii) “Run-Only Floating License” is an extension of “Floating License” that allows for test execution only without the full functionality of the floating license. Under a Run-Only Floating License, the number of concurrent computer or computing devices used for test execution at any one time may not exceed the number of run-only floating seats licensed.

(xiii) “Software” means software licensed by LogiGear under this Agreement and made available for download or otherwise delivered to Customer for installation, including updates, modifications, design data, and all copies thereof, associated software-based APIs, scripts, toolkits, libraries, reference or sample code, and similar materials.

(xiv) “Subscription Term” means the time period specified in the Order for which a term-based Offering is made available to Customer. Any renewal constitutes a new Subscription Term.

(xv) “Supplemental Terms” means additional terms and conditions that apply to a particular Offering as attached hereto or set forth or referenced in an Order.

(xvi) “TestArchitect” means the Offerings of LogiGear’s automation toolset. It reflects the vision that automated testing requires a well-designed architectural plan allowing technical and non-technical elements to work fluidly in their capacity. It also addresses the continual missing link of all test automation tools of how to design tests.

(xvii) “Third Party Content” means Content, applications, and services owned or controlled by a third party and made available to Customer by the third party through or in connection with Cloud Services.

2. Orders

2.1 Ordering

The Parties may enter into one or more Orders under this Agreement. Each Order is binding on the Parties and is governed by the terms of this Agreement.

2.2 Delivery

Unless otherwise set forth in the Order (i) delivery of Cloud Services occurs when LogiGear makes Cloud Services available to Customer for access and use, (ii) delivery of Software occurs when LogiGear makes Software available to Customer via electronic download from a website specified by LogiGear or ships the tangible media containing the Software, and (iii) for an Offering that is comprised of a combination of Cloud Services and Software, delivery occurs when the Software and Cloud Services are made available by LogiGear. Software on media will be delivered subject to EXW (Incoterms 2020) for deliveries that occur entirely within the United States, or China. All other Software will be delivered subject to DAP (Incoterms 2020).

2.3 Payment

Customer will pay the fees set forth in the applicable Order within 30 days after the invoice date unless otherwise agreed by the Parties. LogiGear will invoice Customer for Professional Services on a monthly basis as charges are incurred. Unless specified otherwise in the applicable Order, LogiGear will invoice Customer for fees related to any other Offerings in advance. Without limiting any other remedies available to LogiGear, Customer will pay applicable fees for any excess use of an Offering at the then-current price for such Offering within 30 days after the invoice date. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and all fees are non-refundable.

2.4 Tax

All amounts LogiGear invoices are exclusive of taxes, duties, and any other charges (“Tax”). Customer will pay or refund LogiGear for any applicable Tax imposed by any government authority for Customer’s use or receipt of the Offerings. If Customer is exempt from value-added or sales tax, or similar taxes, then it must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation. If Customer is required by law to deduct or withhold Tax, Customer will increase the amount it pays to LogiGear so that LogiGear still receives the amount originally invoiced. Customer will promptly provide all tax receipts confirming it has paid Tax or has withheld Tax.

3. Use of Offerings

3.1 Use Rights

For Cloud Services contained within an Offering, LogiGear grants Customer a nonexclusive, nontransferable, limited right to access and use such Cloud Services for Customer’s internal business purposes during the applicable Subscription Term, solely in accordance with this Agreement. For Software contained within an Offering, LogiGear grants Customer a nonexclusive, nontransferable, non-sublicensable, limited license to install and use Software for Customer’s internal business purposes during the applicable Subscription Term or such other time period specified in the Order, solely in accordance with this Agreement.

3.2 Users

The number and categories of users authorized to access an Offering are defined in the Order. Customer will ensure that any access or use of an Offering on Customer’s behalf, at Customer’s invitation, or by invitation of a Customer user, complies with Customer’s obligations under this Agreement. If Customer becomes aware of any violation of this Agreement by a user or any unauthorized access to any user account, Customer will immediately notify LogiGear and terminate the relevant user or user account’s access to Offerings. Customer is responsible for any act or failure to act by any user or any person using or accessing the account of a user in connection with this Agreement. Customer acknowledges and agrees that users who submit declarations, notifications, or orders to LogiGear are acting on Customer’s behalf. If a Customer’s Affiliate accesses or uses an Offering, LogiGear may enforce its rights directly against that Affiliate.

3.3 General Use Restrictions

Except as authorized in this Agreement, Customer will not, and will not permit any person or entity to, (i) resell, transfer, sublicense, publish, loan, or lease any Offering, or use any Offering for the benefit of any third party without the prior written consent of LogiGear, (ii) modify, alter, tamper with, repair, or create derivative works of any Offering, (iii) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code of any Offering, (iv) use any Offering in a manner that could subject such Offering to any open source software license that conflicts with this Agreement or that does not otherwise apply to such Offering, (v) use any Offering for the purpose of developing or enhancing any product that is competitive with such Offering, or (vi) remove any proprietary notices or legends contained in or affixed to any Offering. The restrictions set out in this Section do not apply to the extent they conflict with mandatory applicable law.

3.4 Security of Customer Systems

Customer is responsible for the security of Customer systems, including Software on Customer’s systems, and will take commercially reasonable steps to exclude malware, viruses, spyware, and Trojans from Customer’s systems.

3.5 Reservation of Rights

All Software and Cloud Services are trade secrets of LogiGear and its licensors. LogiGear or its licensors retain title to and ownership of Software and Cloud Services. LogiGear reserves all rights in Offerings not expressly granted in this Agreement.

3.6 No-Charge Offerings; Previews

All (i) Offerings provided at no charge to Customer (“No-Charge Offerings”), and (ii) Software or Cloud Services, or any feature thereof, identified as ‘beta’, ‘preview’, ‘pre-release’, ‘early access’, or ‘non-general release’ (“Previews”), are provided “AS IS” without warranty, indemnity, support, or other commitments. Customer will evaluate and test Previews without compensation, and limit access to Previews only to those employees and Customer locations authorized by LogiGear. LogiGear will have exclusive title to and ownership of all written evaluations and all inventions or developments that LogiGear conceives or makes during or after Customer’s use of the Previews, including those based on Customer’s Feedback. LogiGear may change, limit, suspend, or terminate any Previews at any time. Customer acknowledges that Previews are not ready for production usage, and that Customer’s use of any Previews is at its sole risk and discretion. Customer will only use No-Charge Offerings and Previews identified as being ‘demo’, ‘test’, ‘evaluation’, ‘beta’, ‘pre-release’, or similar for internal test and evaluation purposes, and not for production or other commercial purposes.

3.7 Third-Party Technology

Offerings may contain third-party software, technology, and other materials, including open-source software components, licensed by third parties (“Third-Party Technology”) under separate terms (“Third-Party Terms”). Third-Party Terms are specified in the Documentation, Supplemental Terms, or “read me”-, header-, notice-, or similar files. In the event of a conflict with the terms of this Agreement, the Third-Party Terms prevail with respect to Third-Party Technology. With respect to Software, Third-Party Terms for open-source software prevail to the extent they grant Customer use rights based on the connection of the open-source software with Software. If Third-Party Terms require LogiGear to furnish Third-Party Technology in source code form, LogiGear will provide it upon written request and payment of any reasonable expenses.

4. Warranties and Disclaimers

4.1 Software Warranty

The Software warranty is set forth in the ADDITIONAL TERMS A: SOFTWARE LICENSE TERMS.

4.2 Cloud Services Warranty

LogiGear warrants that Cloud Services will perform substantially in accordance with the features and functionalities described in the Documentation. To the extent permissible under applicable law, as LogiGear’s entire liability and Customer’s sole and exclusive remedy for a breach of this warranty, at LogiGear’s option (i) LogiGear will use commercially reasonable efforts to restore the non-conforming Cloud Services so that they comply with this warranty, or (ii) if such restoration would not be commercially reasonable, LogiGear may terminate the Order for the non-conforming Offering and refund any prepaid fees for such Offering on a pro-rata basis for the remainder of the Subscription Term for that Offering. The warranty for Cloud Services excludes (a) No-Charge Offerings and Previews, and (b) issues, problems, or defects arising from Customer Content, Third Party Content, or use of Cloud Services not in accordance with the terms of this Agreement.

4.3 Disclaimers

LogiGear makes only the limited warranties expressly stated in this Agreement, and disclaims all other warranties including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. LogiGear does not warrant or otherwise guarantee that (i) reported errors will be corrected or support requests will be resolved to meet Customer’s needs, (ii) Offerings or any Third Party Content will be uninterrupted, error free, fail-safe, fault-tolerant, or free of harmful components, or (iii) any Content, including Customer Content and Third Party Content, will be secure or not otherwise lost or damaged. Representations about Offerings or features or functionality in any communication with Customer constitute technical information, not a warranty or guarantee.

Customer is responsible for assessing the suitability of each Offering for Customer’s intended use, selecting the Offering necessary to achieve Customer’s intended results, and for the use of Offerings. By using an Offering, Customer agrees that such Offering meets Customer’s requirements to enable compliance with applicable laws. Customer will obtain, at its own expense, any rights, consents, and permits from vendors of software and services used by Customer in connection with any Offering which are required for such use. Customer agrees that Orders are not contingent on any future features or functionality of Offerings.

LogiGear does not control Customer’s processes or the creation, validation, sale, or use of Customer’s (or any client of Customer’s) products or services and will not be liable for any claim or demand made against Customer by any third party, except for LogiGear’s obligations to indemnify Customer against infringement claims as expressly set forth in this Agreement.

5. Limitation of Liability

5.1 Liability Cap

The entire, aggregate liability of LogiGear related in any way to this Agreement is limited as follows: (i) for liability arising from an Offering provided for a Subscription Term, the fees paid to LogiGear for that Offering during the 12-month period immediately preceding the first event giving rise to the claim, provided that the aggregate liability for any Offering will not exceed the amount paid for that Offering during the Subscription Term, or (ii) in all other cases, the fees paid to LogiGear for that Offering. The foregoing limitation does not apply to LogiGear’s indemnity obligation in Section 6.

5.2 Exclusion of Consequential and Other Damages

In no event will LogiGear be liable for (i) any indirect, incidental, consequential, special, exemplary, or punitive damages, loss of production or data, interruption of operations, or lost revenue or profits, even if such damages were foreseeable, or (ii) any No- Charge Offerings or Previews.

5.3 Time Limitation for Claims

LogiGear will not be liable for any claim in connection with this Agreement if such claim is brought more than two years after the first event giving rise to such claim is or should have been discovered by Customer.

5.4 Application of Limitations

The foregoing limitations and exclusions apply (i) to the benefit of LogiGear and its Affiliates, and their respective officers, directors, licensors, subcontractors, and representatives, and (ii) regardless of the form of action, whether based in contract, statute, tort (including negligence), or otherwise.

5.5 Statutory Exceptions

The foregoing limitations and exclusions will not apply to the extent that liability cannot be limited or excluded according to applicable law.

6. Intellectual Property Infringement Indemnity

6.1 Infringement Claim Indemnity

LogiGear will indemnify and defend, at its expense, any action brought against Customer to the extent that it is based on a claim that the Offering infringes any copyright, any trade secret, or a patent or trademark issued or registered by the United States, Japan, or a member of the European Patent Organization, and will pay all damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement, provided that Customer gives LogiGear (i) prompt written notice of the claim, (ii) all requested information and reasonable assistance related to the claim and (iii) sole authority to defend or settle the claim. LogiGear will not admit liability or incur obligations on Customer’s behalf without Customer’s prior written consent, which will not be unreasonably withheld.

6.2 Injunction

If a permanent injunction is obtained against Customer’s use of an Offering due to an infringement claim, LogiGear may, at its sole option, obtain for Customer the right to continue using the Offering, or replace or modify the Offering to become non-infringing. If such remedies are not reasonably available: (i) LogiGear will refund prepaid fees for the enjoined Offering on a pro-rata basis (a) for Hardware or Software licensed to Customer on a perpetual basis, for the remainder of an amortization period of 60 months from the initial delivery to Customer, or (b) for any other Offering, for the remainder of the Subscription Term for that Offering; (ii) any applicable licenses to such Offering will automatically terminate; and (iii) Customer will immediately cease to use the enjoined Offering and return all related Software in its possession. LogiGear may, in its sole discretion, provide any of the foregoing remedies to mitigate infringement prior to the issuance of an injunction.

6.3 Exclusions

Notwithstanding anything to the contrary in this Agreement, LogiGear will not have any liability or obligation to Customer to the extent that an infringement claim arises out of (i) use of a prior version of the Offering to the extent that a current version is non- infringing, (ii) failure to use a replacement, correction, patch, or new version of the Offering offered by LogiGear that performs substantially the same functions, (iii) use of the Offering in combination with Content, equipment, or products not provided by LogiGear, (iv) use of No-Charge Offerings or Previews, (v) deliverables resulting from Professional Services, (vi) any adjustment, modification, or configuration of the Offering not made by LogiGear, or (vii) instructions, assistance, or specifications provided by Customer.

6.4 Sole and Exclusive Remedy

Section 6 sets forth LogiGear’s entire liability and Customer’s sole and exclusive remedy for infringement of third-party intellectual property rights.

7. Renewal, Suspension, Termination

7.1 Subscription and Renewals

If indicated on the Order or otherwise agreed by the Parties in writing or in an electronic system made available by LogiGear, the Subscription Term for the applicable paid Offering will automatically renew for successive Subscription Terms unless either Party notifies the other at least 60 days prior to the end of the then-current Subscription Term that it has elected not to renew. Any renewed Subscription Term will be the same length as the preceding term or 12 months, whichever is greater. If the Agreement or Order applicable to the Offering incorporates online terms by reference, the then-current online terms will apply to the renewed Subscription Term. The fees for any renewed Subscription Term will be the same as those in effect at the end of the preceding Subscription Term, unless (i) LogiGear notifies Customer about different future fees at least 90 days prior to the end of the then-current Subscription Term or (ii) fees for the renewed Subscription Term(s) are specified on the Order.

7.2 Suspension

LogiGear may suspend or limit Customer’s or any user’s access to and use of Offerings, in whole or in part, immediately (i) if LogiGear reasonably determines that the use of the Offering poses a security risk to the Offering, LogiGear, or any third party, or subjects LogiGear or any third party to liability, (ii) if Customer materially breaches this Agreement, or (iii) upon the occurrence of any of the circumstances that give LogiGear the right to immediate termination under Section 10.3. Suspension or limitation will not limit any other rights available to LogiGear under this Agreement, will not relieve Customer of its obligation to pay fees, and will be lifted when the reason for such suspension or limitation no longer exists.

7.3 Termination

Neither Party will terminate an Order for convenience during the applicable Subscription Term. Either Party may terminate an Order for a particular Subscription Term based Offering with immediate effect in the event of the other Party’s material breach of this Agreement which remains uncured for a period of 30 days from receipt of notice specifying the breach; provided that such termination will only be effective with respect to the Offering affected by the material breach. LogiGear may immediately terminate any or all Orders or this Agreement upon notice to Customer in the event of Customer’s unauthorized installation or use of LogiGear software, Customer’s filing for bankruptcy or having bankruptcy proceedings filed against it, Customer ceasing to do business, any breach by Customer of Sections 2.3, 3, 8, 11, 16, 18, 20, or in order to comply with applicable law or the requests of government authorities.

7.4 Effect of Expiration or Termination

Upon expiration of the applicable Subscription Term or termination of any Order for one or more Offerings or this Agreement for any reason, Customer’s rights to access, use, or receive the affected Offering(s) automatically terminate. Customer will immediately cease using the affected Offering(s), remove and destroy all Software and other LogiGear Confidential Information relating to such Offering in its possession or control, and certify such removal and destruction in writing to LogiGear. Customer may retrieve Customer Content available for download for a period of 30 days after expiration or termination, provided Customer is in compliance with this Agreement and pays any applicable fees. After such period, all Customer Content may be deleted. Termination of this Agreement or any Order for one or more Offerings will not relieve Customer of its obligation to pay the total fees set forth in any Order, which fees will become due and payable immediately upon termination. In the event of Customer’s termination for LogiGear’s material breach in accordance with Section 7.3, LogiGear will refund a reasonable portion of any prepaid fees on a pro-rata basis for the remainder of the Subscription Term for the affected Offering(s).

Sections 2.3, 2.4, 3.3, 3.4, 3.5, 6.2, 7.3, 8, 11, 13, 14, 16, 18, 20 and 21 survive termination of this Agreement.

8. Export Law Assurances

Customer may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be transferred, exported, re-exported or used (i) into (or to a national or resident of) any U.S. embargoed country or (ii) transferred, exported, re-exported or used in any manner in violation of the export laws of the United States or the laws of any other country or any other export laws, restrictions or regulations. If LogiGear receives notice that Customer is or has become identified as a sanctioned or restricted party under applicable law, LogiGear will not be obligated to perform any of its obligations under this Agreement if such performance would result in violation of the sanctions or restrictions.

9. Government End Users

The Software is provided with “Restricted Rights.” Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this Agreement and as provided in subparagraph (b) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.

10. High Risk Systems terms

CUSTOMER UNDERSTANDS THAT THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH-RISK SYSTEMS. LOGIGEAR HAS NO RESPONSIBILITY FOR, AND CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS LOGIGEAR FROM, ALL CLAIMS, SUITS, DEMANDS AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE OR EXPENSES (INCLUDING ATTORNEY FEES) ARISING FROM OR IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING THOSE THAT COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL-SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, OR ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE, OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.

11. Controlling Law and Severability

This Agreement shall be governed by the laws of the United States and the State of California, without regard to its conflicts of laws rules. Any legal action shall be adjudicated in the County of San Mateo, State of California or, in the case of Federal jurisdiction, in the Northern District of California. In the event that any legal action is required to enforce or interpret any provisions of this Agreement, the substantially prevailing Party in such action is entitled to recover, in addition to any other relief granted, all reasonable costs and expenses, including attorneys' fees, incurred in connection therewith. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.

12. Marketing

Customer agrees to be identified as a customer of LogiGear and that LogiGear may refer to Customer by name, trade name and trademark, if applicable, and may briefly describe Customer's business in LogiGear’s marketing materials and on LogiGear’s web site. Customer hereby grants LogiGear a license to use Customer's name and any of Customer's trade names and trademarks solely in connection with the rights granted to LogiGear pursuant to this marketing section.

13. Use of Data

By Customer's acceptance of this Agreement, Customer authorizes the collection, use and disclosure of information collected by LogiGear for the purposes provided for in the Agreement and the Privacy Policy. LogiGear may use this information to improve its products and services. Customer is encouraged to review the terms of the Agreement and Privacy Policy from time to time, as LogiGear may revise or change the content of the Agreement or Privacy Policy. The Privacy Policy can be found on the LogiGear website: https://www.testarchitect.com/legal/privacy-policy.

14. Privacy and Data Collection of Personal Data or System Information

For Cloud Services, Customer retains ownership of all content uploaded to or generated by use of the Cloud Services (“Customer Content”). LogiGear may process, store, analyze, and use Customer Content solely to deliver Cloud Services, perform operations, support troubleshooting, and for aggregated, non-personally identifiable analytics.

The Offerings may employ applications and tools to collect Personal Data, sensitive data or other information about Customer and/or Customer’s end users (including name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (including information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, processes and services information, frequency and details of update of the Offerings, information about third-party products installed, (collectively, Data).

The collection of Data may be necessary to provide Customer with the relevant Offerings as ordered (including detecting and reporting threats and vulnerabilities on Customer’s computer network), to enable LogiGear to improve Offerings (including content synchronization, device tracking, troubleshooting, etc.), to enable LogiGear to manage services to Offerings, and to further or improve overall security for Customer. Customer may be required to uninstall the Software or disable applicable services to stop further Data collection that supports these functions. For Cloud Services, LogiGear will employ TLS/HTTPS for all data in transit and AES-256 encryption for data at rest, maintain appropriate physical, technical, and organizational safeguards consistent with industry standards (e.g., SOC 2, ISO 27001), ensure logical separation of Customer Content in multi-tenant environments, and implement system logs and audit trails accessible to Customer upon request.

By entering into this Agreement, or using the Offerings, Customer agrees to the LogiGear Privacy Policy available at https://www.testarchitect.com/legal/privacy-policy and to the collection, processing, copying, backup, storage, transfer and use of the Data by LogiGear and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of Customer’s jurisdiction as part of the Software, Support or service subscription. LogiGear will only collect, process, copy, backup, store, transfer and use personal data in accordance with the LogiGear Privacy Policy.

Customer will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or Customer’s internal policies or guidelines in order to disclose Customer’s personal data, in order to use the Offerings, and/or in connection with LogiGear’s performance of Offerings or otherwise under this Agreement.

15. Open-Source Software

The Software may include components (including programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (FOSS Code). FOSS Code components included with the Software are redistributed by LogiGear under the terms of the applicable FOSS Code license for such component.

16. Confidentiality

16.1 Confidential Information

“Confidential Information” means all information disclosed by one Party or any of its Affiliates or subcontractors to the other Party under this Agreement that is marked as confidential or the confidential nature of which is evident to a reasonable person. LogiGear Confidential Information includes the terms of this Agreement and any Order, Offerings, and any information Customer derives from benchmarking any Offering. The receiving Party will (i) not disclose Confidential Information, except (a) on a need-to-know basis to its and its Affiliates’ employees, consultants, contractors, and financial, tax, and legal advisors that are bound by confidentiality obligations and use restrictions at least as restrictive as those in this Agreement, or (b) as otherwise authorized by the disclosing Party or this Agreement, (ii) use Confidential Information only as required to exercise or enforce rights or perform obligations under this Agreement, and (iii) use reasonable care to protect against unauthorized use and disclosure of the disclosing Party’s Confidential Information. The receiving Party will be liable for compliance with Section 16 by each of its recipients.

16.2 Exclusions

The obligations in Section 16.1 will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving Party in violation of this Agreement, (ii) becomes available to the receiving Party from a source other than the disclosing Party, provided that the receiving Party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality, (iii) was in the receiving Party’s possession without an obligation of confidentiality prior to receipt from the disclosing Party, (iv) is independently developed by the receiving Party without the use of, or reference to, the disclosing Party’s Confidential Information, or (v) is required to be disclosed by a government authority or law, so long as the receiving Party promptly provides the disclosing Party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing Party to limit the scope of such disclosure.

17. Assignment

This Agreement will extend to and be binding upon the successors, legal representatives, and permitted assignees of the Parties. However, this Agreement and the rights granted under this Agreement may not be assigned, sublicensed, or otherwise transferred (by operation of law or otherwise) by Customer without the prior written consent of LogiGear. Any attempted assignment in violation of this Section will be void.

18. Feedback

If Customer provides any ideas or feedback regarding any Offering, including suggestions for changes or enhancements, support requests (including any related information), and error corrections (collectively “Feedback”), Feedback may be used by LogiGear without condition or restriction.

19. Force Majeure

Neither Party will be liable for delay or failure to perform any obligations under this Agreement (except with respect to any payment obligations) due to any cause beyond its reasonable control. The delayed Party will promptly notify the other Party of any such event.

20. Information Obligations; Audit

Customer will provide information or other materials that LogiGear reasonably requests to verify Customer’s compliance with this Agreement. Audits of Customer’s usage of installed Software may be conducted as self-audits by Customer using the inventory tools provided by LogiGear. If Customer is unable or unwilling to use the tools in self-service, LogiGear or its authorized agents may access Customer’s facilities to perform the audit.

21. No Waiver; Validity and Enforceability

The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the Parties as nearly as possible in accordance with applicable law. The Parties agree that electronic signatures or acceptance of this Agreement via an electronic system specified by LogiGear will have the same force and effect as manual signatures.

22. Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to the use of the Offerings and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by LogiGear.

Any questions regarding this Agreement should be directed to LogiGear at the following address: LogiGear Corporation, 1730 S. Amphlett Blvd., Suite 200, San Mateo, CA 94402 or send an email to [email protected].