THIS EULA GOVERNS CUSTOMERS’ ACQUISITION AND USE OF HYPERTEST PRODUCTS AND SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF HYPERTEST PRODUCTS, THE APPLICABLE PROVISIONS OF THIS EULA WILL ALSO GOVERN THAT FREE TRIAL OR THAT COMMUNITY VERSION.

CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THIS EULA BY EITHER (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS EULA, OR (3) USING THE HYPERTEST PRODUCTS UNDER A FREE TRIAL.

IF THE INDIVIDUAL ACCEPTING THIS EULA IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

IF THE INDIVIDUAL ACCEPTING THIS EULA DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS EULA AND MAY NOT USE THE HYPERTEST PRODUCTS.

This EULA is effective between Customer and HYPERTEST as of the date of Customer’s accepting this EULA (the “Effective Date”). This EULA, any Order Forms hereunder, and any addenda or supplements to the foregoing collectively comprise this “Agreement”.

1. Definitions

1.1 "Confidential Information” means any information expressly identified as confidential or which would reasonably be considered confidential or proprietary under the circumstances, including but not limited to product roadmaps, source code, know-how and trade secrets. Without limiting the foregoing, the HyperTest Product, Documentation and Services (including any deliverables of such Services such as training materials) shall be deemed the Confidential Information of HyperTest, and the Customer Content shall be deemed to be your Confidential Information.

1.2 “Customer” or “You” means: (i) in the case of an individual accepting this EULA on his or her own behalf, such individual; or (ii) in the case of an individual accepting this EULA on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this EULA, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

1.3 “Customer Content” means code owned by you or your Affiliates that you run through the HyperTest Product.

1.4 “HyperTest” means the company registered in the United States of America, with a registered office and principal place of business at 16192 Coastal Highway, Lewes, DE 19958

1.5 “HyperTest Product” means the software program (in object code form) ordered and purchased by Customer under an Order Form or online purchasing portal, or under a free trial, made available by HyperTest.

1.6 “Documentation” means the end-user documentation for the HyperTest Product as made commercially available and provided by HyperTest.

1.7 “Entitlement” means the number of instances or other applicable units for which you are licensed to use the HyperTest Product, as specified on the relevant Order Form.

1.8 “Intellectual Property Rights” means patents, utility models, rights to inventions, copyrights, trademarks and service marks, trade names and domain names, rights in trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

1.9 “Order Form” means an ordering document or online order specifying the HyperTest Products and Services purchased by Customer hereunder that is entered into between Customer and HyperTest or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this EULA as if it were an original party hereto and references to Customer herein will refer to the relevant Affiliate for purposes of such Order Form.

1.10 “Services” means training, installation, configuration, or other services ancillary to the HyperTest Product ordered by the Customer under an Order Form or online purchasing portal.

1.11 “Subscription Term” means the period for which you are granted a license to use the applicable HyperTest Products and Services, as described in Clause 4.2.

1.12 “Update” means a version or release of the HyperTest Product intended to have updated functionality, a software maintenance update, a patch, or a bug-fix (as indicated by a number change to the right of the decimal point e.g. v 1.1, 1.2, 1.3).

1.13 “Upgrade” means a version or release of the HyperTest Product encompassing substantially new or enhanced features or functionality.

2. Scope

2.1 Provision of Products. You agree to be bound by this EULA through your use of HyperTest Products, or your express agreement to this EULA. If you do not have the authority to enter into this EULA or You do not agree with its terms, do not use HyperTest Products.

3. License

3.1 License Grant. Subject to your payment of the fees when due (as applicable) and your compliance with the terms and conditions of this Agreement, HyperTest grants you a non-exclusive, non-sublicensable, non-transferable, limited-term license to use the HyperTest Product during the applicable Subscription Term solely for your internal business purposes on code developed by you and your Affiliates. The HyperTest Product may contain third-party components with separate notices and licensing terms with which you must comply, as specified in the Documentation.

3.2 Restrictions. You must not: (i) publicly display, publicly perform, translate or create derivative works of the HyperTest Product; (ii) (except as expressly provided by Clause 3.3) distribute, sell, sublicense, lease, rent, loan, assign, transfer or otherwise make the HyperTest Product available to any third party or use the HyperTest Product for the benefit of any third party; (iii) (except to the extent that this restriction is prohibited by applicable law) modify, adapt, alter, copy, reverse engineer, decompile, make error corrections, disassemble, or otherwise attempt to derive the source code for the HyperTest Product in whole or in part; (iv) disclose any performance information or analysis (including benchmarks) relating to the HyperTest Product to a third party; (v) remove, alter, obscure or destroy any proprietary notices on the HyperTest Product, or produce copies of the HyperTest Product which do not contain such notices; (vi) access the HyperTest Products for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking, nor use output for such purposes; (vii) use the HyperTest Product or any output from the HyperTest Product for training machine learning models nor for any other machine learning purposes, nor to create a competitive product; or (viii) use the HyperTest Product in any manner other than as described in the Documentation, this Agreement or the relevant Order Form. For free trials, you agree to delete all output prior to or on expiry or termination of the free trial period.

3.3 Restrictions for Trial Use. HyperTest is provided free for proof of concept use at HyperTest’s expense, and its capabilities are restricted. You must not circumvent these restrictions, and HyperTest will take action to block or restrict your usage should you attempt to do so.

3.4 Ownership. The HyperTest Product, Documentation, and all Intellectual Property Rights therein are and shall remain the exclusive property of HyperTest (and its licensors and contributors). Except for the rights expressly granted under this Agreement, (i) HyperTest (and its licensors and contributors) reserves all rights, title and interest in and to the HyperTest Product, Services, Documentation and all Intellectual Property Rights therein, and (ii) no right, title, interest or license in or to the HyperTest Product, Services, Documentation or any other Intellectual Property Rights is granted, assigned or transferred to you, whether by implication, inducement, estoppel or otherwise. The HyperTest Product is licensed, not sold or given.

3.5 Suggestions. If you provide HyperTest with any suggestions or other input relating to the HyperTest Product, you (i) grant HyperTest an irrevocable, perpetual, worldwide, fully paid, royalty-free, sub-licensable and transferable license to use such suggestions and input for any purpose, and (ii) warrant that HyperTest's use of such suggestions and input does not infringe the Intellectual Property Rights of any third party.

4. Term

4.1 Subscription Term. The Subscription Term is: (A) for those HyperTest Products and Services purchased by you, the term of the license specified on the relevant Order Form; or (B) for a free trial, until the earlier of (i) expiry of that period for which you subscribed or which HyperTest informs you of when you register for the free trial or (ii) the start date for the HyperTest Products which you purchase as set out in the applicable Order Form for such purchase

4.2 Suspension. As an alternative to termination, HyperTest may (at its discretion) elect to suspend the license grant for the HyperTest Product until such time as the default or arrears are remedied by you, or HyperTest elects to terminate the Agreement. For the avoidance of doubt, the Subscription Term shall continue to be exhausted and fees shall continue to be payable during any such period of suspension.

4.3 Subscription Renewal. Your subscription will automatically renew for the renewal period indicated on the order You placed with HyperTest, unless (i) You notify HyperTest in writing at least 45 days before the end of Your then-current term; or (ii) You elect not to auto-renew at the time of the initial Order.

4.4 Effects of Termination. Upon expiry or termination of the Subscription Term, you must immediately (i) pay any and all fees outstanding; (ii) cease use of the relevant HyperTest Product; (iii) destroy the relevant HyperTest Product and Documentation (and all copies thereof); (iv) return or destroy any HyperTest Confidential Information; and (v) certify upon request that you have complied with the foregoing obligations.

5. Maintenance

5.1 Maintenance. Except for free trials, HyperTest will make available to you any Updates that it makes generally available at no charge to its customers and users, in accordance with its normal Update cycle. Updates and Upgrades are provided for free trials solely at the discretion of HyperTest.

6. Confidentiality and Data Protection.

6.1 Obligations. A receiving party (the “Recipient”) shall maintain the confidentiality of all Confidential Information of the disclosing party (the “Discloser”) and shall not use such Confidential Information other than as necessary for the exercise of its rights and performance of its obligations under this Agreement or as otherwise permitted herein. The Recipient shall not disclose Confidential Information to any third party without the Discloser’s prior written consent save for those professional advisors, Affiliates, directors, officers, employees, agents, suppliers, and contractors who have entered into a written agreement with the Recipient that is no less protective of the Discloser’s Confidential Information than this Agreement and who have a need to know such information. The Recipient shall assume liability for use of the Confidential Information by such persons. The Recipient shall use the same measures to protect the Discloser’s Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable measures.

6.2 Exclusions. The restrictions of this Clause 6 shall not apply to information that: (i) is independently developed by the Recipient without any access to the Confidential Information of the Discloser; (ii) becomes known to the Recipient, without restriction, from a third party without breach of any confidentiality obligation to the Discloser; or (iii) is or comes in the public domain through no act or omission of the Recipient.

6.3 Compelled Disclosure. The Recipient may disclose Confidential Information to the extent legally required by a valid court order or as otherwise required by law, provided that it provides reasonable prior notice to the Discloser of any disclosure to be made pursuant to such order or requirement (to the extent permitted by law) and cooperates with the Discloser’s reasonable efforts to limit such disclosure or obtain assurance of confidential treatment of any Confidential Information to be disclosed. The Recipient will disclose only that part of such Confidential Information as is required by law to be disclosed.

6.4 Customer rights. Customer owns any data, information or material originated by the Customer that Customer submits or compiles in the course of using the Services. HyperTest has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to collect and use the Customer Data. Customer permits and grants HyperTest and its licensors the right to use the Customer Data only as necessary to provide the Project Services and Consulting Services under this Agreement.

6.5 Customer name and logo usage. Customer hereby permits HyperTest to use the Customer’s name, website address and logo in its marketing material including website, email campaigns, brochures etc. during active engagement after seeking prior written permission.

7. Indemnification

You agree to indemnify and hold HyperTest harmless from: (i) any claim or action alleging that Customer Content or other materials provided by you infringe the Intellectual Property Rights of or breach confidentiality obligations to a third party; (ii) any claim or action alleging that your Customer Content or use of the HyperTest Product breaches applicable laws or regulations; (iii) any breach of Clause 8.3; and (iv) any claim or action arising from your use or dissemination of any output generated by your use of the HyperTest Products.

8. General

8.1 Notices. All notices to HyperTest must be sent by registered mail or courier to HyperTest’s registered address, with a copy by email to legal@HyperTest.com. HyperTest will deliver all notices to your registered address unless you notify HyperTest of an alternative address. Email notices will be effective on delivery and postal or courier notices will be effective two (2) working days from sending.

8.2 Parties. The parties are independent contractors. This Agreement does not create an agency, employment, joint venture, partnership, or other relationship. This Agreement does not confer any rights on any person that is not a party to this Agreement.

8.3 Export. You must comply with all applicable export and import control laws, regulations, sanctions and trade embargoes of the United States, United Kingdom, and foreign jurisdictions in which the HyperTest Product is used. You will not export or re-export the HyperTest Product: (i) without all required United States, United Kingdom, and foreign government licenses; or (ii) to any person in the Russian occupied area of the Ukraine, Russia, Belarus, Cuba, Eritrea, Iran, Iraq, North Korea, or Syria.

8.4 Assignments. You may not assign or transfer any of your rights or obligations under this Agreement. HyperTest may assign, transfer, or subcontract all or any of its rights or obligations under this Agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors, transferees, and assigns.

8.5 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

8.6 Severability. If any provision of this Agreement is deemed to be invalid, unenforceable, or illegal, such provision will be modified to achieve the objectives of such provision. If modification is not possible, the relevant provision shall be deleted. Any modification or deletion under this Clause shall not affect the validity and enforceability of the rest of this Agreement.

8.7 Force Majeure. HyperTest shall not be liable for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation: (i) unavailability, reduced performance, failure or delay of a supplier, utility service provider or telecommunications network; (ii) explosion, terrorist attack, war, riot, civil commotion, or malicious damage; (iii) compliance with any law or governmental order; (iv) fire, flood, storm, act of God, epidemic, or other natural disaster. In such event, the time for performance shall be extended for the period of delay or inability to perform.

8.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this EULA, and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).

8.9 Governing Law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including but not limited to non-contractual disputes or claims) will be governed by the laws of the State of Delaware, without regard to its conflicts of law rules.

8.10 Jurisdiction. The parties hereby submit to the exclusive jurisdiction of the state or federal courts in Wilmington, Delaware to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including but not limited to non-contractual disputes or claims). You acknowledge that any actual or threatened disclosure of HyperTest Confidential Information or infringement of HyperTest Intellectual Property Rights will constitute immediate and irreparable harm to HyperTest for which monetary damages would be an inadequate remedy and for which HyperTest will be entitled to seek injunctive relief. Nothing in this Clause will prevent HyperTest from seeking injunctive relief, protecting its Intellectual Property Rights and Confidential Information, or recovering overdue payments from any court of competent jurisdiction.