Service Subscription Agreement

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF KOBITON SERVICES.

BY ACCEPTING THESE TERMS OF SERVICE, EITHER BY REGISTERING ON WWW.KOBITON.COM OR PORTAL.KOBITON.COM OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR ANY OTHER DOCUMENTATION THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

IF YOU REGISTER FOR A FREE TRIAL OR FREE ACCOUNT FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR FREE ACCOUNT.

This Agreement was last updated on June 21, 2025. It is effective between You and Kobiton as of the date of Your acceptance of this Agreement.

The parties hereby agree to the following with respect to Your use, and Kobiton’s provision, of the Service (as defined below).

1. OVERVIEW

a. Introduction

Pursuant to this Agreement, Kobiton offers Services designed to enable customers to remotely access their websites and mobile applications across an array of mobile devices and operating systems.

b. Definitions

1. “Account-Related Information” means contact information, payment information, and biographical information about Customer’s representatives and contacts used to open accounts to use Kobiton’s Services, to maintain existing accounts, and for marketing purposes.
2. “Customer” means any customer of Kobiton who or which is being provided with the Services as set out in the Agreement.
3. “Customer Content” means (i) data or content in the Customer Properties that Customer chooses to access through the Service (and for mobile applications, the application package itself); (ii) data Customer submits or creates as part of accessing the Service, including test scripts and Screenshots; and (iii) any other data Customer submits to Kobiton in connection with the use of the Services (not including Account-Related Information).
4. “Customer Property” or “Customer Properties” means a mobile application or applications, respectively, submitted to the Services.
5. “Documentation” means the technical user documentation provided with the Services.
6. “Private Cloud” means a cloud implementation of the Kobiton Services, hosted by Kobiton, providing dedicated devices for the Customer’s exclusive use.
7. “Hybrid Cloud” means a cloud implementation of Kobiton Services whereby the Customer hosts dedicated devices on the Customer’s premises and connect to Kobiton’s cloud infrastructure.
8. “Kobiton Code” means any software component—such as SDKs, plug-ins, command-line tools, or on-prem/edge agents—provided by Kobiton for installation or execution within Customer’s environment (including browsers, CI/CD pipelines, or customer-hosted device labs) in connection with the Services.
9. “Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
10. “On-Premises” means a configuration where the Kobiton Software is installed and operated solely within the Customer’s infrastructure, without reliance on Kobiton’s cloud infrastructure.
11. “Order Form” means each quote, order form, or and/or statement of work referencing this Agreement.
12. “Open Source Software” means any open source, community or other free code or libraries of any type, including, without limitation, any code which is made generally available on the Internet without charge (such as, for example purposes only, any code licensed under any version of the MIT, BSD, Apache, Mozilla or GPL or LGPL licenses).
13. “Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, government identification card number, passport number, or other similar identifiers; (ii) any patient, medical records or other protected or regulated health information; (iii) any financial information (including bank account or payment card numbers) or any other information subject to regulation or protection under specific laws or regulations; or (iv) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy laws or data security Laws.
14. “Parallel Tests” means the number of tests that Customer’s Permitted Users (as defined below) are collectively running on Remote Access Environments at a given point in time.
15. “Professional Services” means implementation, customization, training, or consulting services provided by Kobiton or a Kobiton partner beyond standard support services.
16. “Public Cloud Deployment” means a deployment model where the Kobiton devices are hosted on shared cloud infrastructure, managed by Kobiton, and accessible to multiple customers.
17. “Screenshot(s)” means an image or video of the Remote Access Environment display captured using the Services.
18. “Services” means Kobiton’s proprietary software-as-a-service solution(s), described in the applicable Order Form. Subject to the terms herein, references to the Services also include the Documentation.
19. “Subscription Term” means the period during which the Customer has the right to access and use the Kobiton Services, as specified in the applicable Order Form.
20. “Remote Access Environment” means physical mobile devices, and device emulators on which Customer may use the Services to remotely access real devices or virtual devices.

2. KOBITON SERVICES

1. Access to Services. Customer will purchase and Kobiton will provide the specific Services as specified in the applicable Order Form. Customer may access and use these Services during the Subscription Term (as defined below) solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including any limits on Parallel Tests, Screenshots, and Permitted Users, if applicable). As part of its use of the Services and if required, Customer may copy and use the Documentation for Customer’s internal use in connection with the use of the Services.
2. Permitted Users.
   1. In General. Use of and access to the Services is permitted by and only by the Customer’s employees, and other authorized personnel who are granted access to the Kobiton Services under Customer’s subscription (“Permitted Users”). If Customer is given passwords to access the Services on Kobiton’s systems, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords.
   2. Contractors and Affiliates. Customer may permit individuals serving as its independent contractors and consultants who are not competitors of Kobiton (“Contractors”) and individual employees, contractors, or consultants of Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate Permitted User with all of the terms and conditions of this Agreement and any such use of the Services by such Contractor or Affiliate Permitted User is for the sole benefit of Customer. “Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
3. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Kobiton); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (f) publicly disseminate information that discloses Kobiton Confidential Information or non‑public performance benchmarking.
4. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to one or more Services (a “Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Kobiton (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Certain Trial Subscriptions may include pre-release and beta products (“Beta Releases”). Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Kobiton has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, KOBITON WILL HAVE NO WARRANTY, INDEMNITY, DATA ARCHIVING, SERVICE LEVEL, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

3. CUSTOMER CONTENT

1. Rights in Customer Content. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) that Customer may have in and to the Customer Content as submitted to or accessed through the Services. Subject to the terms of this Agreement, Customer hereby grants to Kobiton a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Content solely to the extent necessary to provide the Services to Customer. For clarity, Kobiton hosts Customer Properties, but does not operate the Customer Properties remotely accessed by Customer. Further, Kobiton Services may include without limitation AI-powered capabilities or functionalities. Use of such Services may include technology provided by certain third-party tools and software(collectively referred to as “Third-Party AI Software”). Both Parties agree that Kobiton shall have no liability for any claims, damages, or losses, whether direct or indirect, arising from the use of Third-Party AI Software, including but not limited to errors, interruptions, or inaccuracies within the Third-Party AI Software. Customer may opt out of using such Services by requesting an alternative SKU.
2. Customer Obligations.
   1. In General. Customer will ensure that Customer’s use of each Service and all Customer Content is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Content. Customer represents and warrants to Kobiton that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting Kobiton the rights in Section 3.1), and that no Customer Content will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights or (ii) any Laws. If specified in the Documentation, Customer will submit certain types of Customer Content (e.g., mobile applications) in the format required by Kobiton.
   2. No Personal Information. Customer acknowledges that the Services are not designed for use with (and do not require) Personal Information included in Customer Content. Customer specifically agrees not to use the Services to collect, store, process or transmit any Personal Information other than Account-Related Information, and will not submit to the Services any Customer Content containing any Personal Information. Kobiton will have no liability under this Agreement for Personal Information included within Customer Content, or any security incident or breach regarding such Personal Information, notwithstanding anything to the contrary herein.
   3. Customer Content Guidelines. Customer will not use the Services with any Customer Content that (i) is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in Kobiton’s discretion; (ii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iii) could otherwise cause damage to Kobiton or any third party.
3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Kobiton from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Content or acts or omissions of Customer that constitute a breach or alleged breach by Customer of Section 3.3 (Customer Obligations) or (b) any service or product offered by Customer in connection with or related to the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Kobiton at Customer’s expense. Notwithstanding the foregoing sentence, Kobiton may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and Customer will not settle any claim without Kobiton’s prior written consent, unless the settlement fully and unconditionally releases Kobiton and does not require Kobiton to pay any amount, take any action, or admit any liability.

4. DATA PROTECTION

In accordance with the General Data Protection Regulation (EU) 2016/679 (GDPR), the data protection terms relating to processing of Account-Related Information and Customer Content are contained in the Data Protection Addendum. To the extent that there is any conflict between any provision of the Agreement and the contents of Exhibit A, the contents of Exhibit A shall prevail in respect of such conflict in so far as the matters of data protection are concerned.

5. REGULATORY COMPLIANCE

Kobiton is currently in compliance with and shall at all times remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the Department of the Treasury and any statute, executive order, or other governmental action relating thereto. In accordance with the regulations, Kobiton does not offer services to users in specific sanctioned regions and hence does not allow users in such regions to access all of certain parts of the service, including certain products. More information about the sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) of the US Department of the Treasury is available at https://www.treasury.gov/resource-center/sanctions/pages/default.aspx. Therefore, Customer and/or its Affiliates agree that they are not from such specific sanctioned regions and are currently in compliance with and will at all times during the Subscription Term of this Agreement remain in compliance with the regulations of OFAC and any statute, executive order, or other governmental action relating thereto.

6. OWNERSHIP

1. Kobiton Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Kobiton or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation, Professional Services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Kobiton Technology”). Except as expressly set forth in this Agreement, no rights in any Kobiton Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-premise or on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services.
2. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Kobiton product or service to Kobiton (“Feedback”). Kobiton may freely use or exploit Feedback in connection with any of its products or services without the need to pay compensation for any use of such Feedback.
3. Usage Data. Notwithstanding anything to the contrary herein, Customer agrees that Kobiton may obtain technical data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Usage Data”), and Kobiton may use the Usage Data to analyze, improve, market, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement. For clarity, this Section 6.3 does not give Kobiton the right to identify Customer as the source of any Usage Data.

7. FEES & PAYMENT

1. Fees and Payment.
   (a) Except as expressly stated in an Order Form, all fees are set forth therein, are non-cancellable and non-refundable, and are due thirty (30) days from the invoice date.
   (b) Renewal-Term Price Adjustment. Subject to the renewal mechanism in § 8.1, Kobiton may increase the recurring subscription fees for any Renewal Term by the greater of (i) eight percent (8 %) of the fees charged for the identical Services during the immediately preceding twelve-(12)-month period, or (ii) Kobiton’s then-current list price for the same SKU(s).
   (c) Notice Requirement. Any such fee increase will take effect on the first day of the Renewal Term only if Kobiton provides Customer with written notice of the new fees at least forty-five (45) days before the Renewal Term begins.If Kobiton fails to give timely notice, the expiring fees will remain in effect for that Renewal Term.
   (d) Volume Reductions. If Customer reduces subscription volume, units, or Subscription Term length for any Service in a Renewal Term, Kobiton may re-price the affected Services at then-current list rates without regard to the prior Term’s pricing.
   (e) Taxes; Late Payments. Customer is responsible for all applicable taxes, exclusive of taxes based on Kobiton’s net income. Late payments accrue interest at 1.5 % per month (or the maximum lawful rate, if lower).
2. Suspension of Service. In addition to any of Kobiton’s other rights or remedies (including but not limited to any termination rights set forth herein), Kobiton reserves the right to suspend Customer’s access to the Services if: (i) Customer’s account is thirty (30) days or more overdue; (ii) Kobiton determines that Customer has breached Section 2.3 (General Restrictions) or Section 3.3 (Customer Obligations); or (iii) Kobiton determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services. Kobiton will have no liability for taking action as permitted above in this section. However, unless this Agreement has been terminated, Kobiton will cooperate with Customer to restore access to the Services once it verifies that Customer has resolved the condition requiring suspension.

8. TERM AND TERMINATION

1. Term. This Agreement is effective as of the Effective Date. Either party may terminate this Agreement on written notice if there are no Order Forms in effect. Each Service is provided on a subscription basis for a set term designated on the Order Form and thereafter, will automatically renew for successive terms of equal length to the initial term unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (the initial term and each renewal term, a “Subscription Term”).
2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Kobiton Technology) and delete (or, at Kobiton’s request, return) any and all copies of the Documentation, any Kobiton passwords or access codes and any other Kobiton Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Content input into any Service, and that Kobiton may delete any such data as may have been stored by Kobiton at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.3 (General Restrictions), 2.4 (Trial Subscriptions), 3.3 (Indemnification by Customer), 6 (Ownership), 7.1 (Fees and Payment), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11 (Confidential Information) and 12 (General Terms).

9. LIMITED WARRANTY

1. Limited Warranty. Kobiton warrants, solely for Customer’s benefit, that during the applicable Subscription Term each Service, when used in accordance with this Agreement and the Documentation, will materially conform to, and operate in all material respects as described in, the applicable Documentation (the “Limited Warranty”).
   Remedy. If the Services fail to meet this Limited Warranty and Customer provides written notice within thirty (30) days after discovery of the non-conformity, Kobiton will, at no additional cost to Customer and as Customer’s exclusive remedy: (i) use commercially reasonable efforts to correct the reported non-conformity or provide a workaround that achieves materially equivalent functionality, or (ii) if Kobiton determines that such remedies are not commercially feasible, either party may terminate the affected Order Form and Kobiton will refund any prepaid, unused fees for the remainder of the terminated Subscription Term.
   Exclusions. The Limited Warranty does not apply to: (a) errors or deficiencies resulting from misuse, accident, or unauthorized modification of the Services, or from combination of the Services with software, hardware, data, or processes not supplied or expressly authorized by Kobiton; (b) beta, evaluation, or Trial Subscriptions; or (c) Services provided free of charge.
2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES AND THE KOBITON CODE ARE PROVIDED “AS IS”. NEITHER KOBITON NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. KOBITON DOES NOT WARRANT THAT CUSTOMER’S USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES KOBITON WARRANT THAT IT WILL REVIEW THE CUSTOMER CONTENT FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT WITHOUT LOSS. KOBITON WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF KOBITON. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
3. Specific Disclaimers. TO THE EXTENT PERMITTED BY LAW, KOBITON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY US, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT KOBITON CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, KOBITON SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER DATA ARISING FROM SUCH RISKS AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO NEGLIGANCE OR FAILURE ON KOBITON’S PART.

10. LIMITATION OF REMEDIES AND DAMAGES

1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, THE DOCUMENTATION, OR THE KOBITON CODE FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
2. Liability Cap. KOBITON’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, THE DOCUMENTATION, OR THE KOBITON CODE AT ANY TIME SHALL BE SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE UNDER THE ORDER FORM GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.
3. Intellectual Property Indemnification.
   1. Defense & Payment. Kobiton will, at its own expense, defend Customer, its affiliates, and their respective officers, directors, and employees (“Customer Indemnitees”) against any third-party claim, suit, or proceeding (each, a “Claim”) alleging that the Services, as delivered by Kobiton and used in accordance with this Agreement, directly infringe a United States patent issued as of the Effective Date or any registered U.S. copyright or trademark. Kobiton will pay (i) all reasonable attorneys’ fees it incurs in the defense and (ii) any damages or costs finally awarded against a Customer Indemnitee (or agreed to by Kobiton in a settlement it approves).
   2. Exclusions. Kobiton has no obligation under this Section for Claims arising from (a) use of the Services in combination with software, hardware, data, or processes not supplied by Kobiton if the Claim would have been avoided but for that combination; (b) modifications to the Services made by anyone other than Kobiton or its authorized contractors; (c) Customer’s continued use of the Services after Kobiton notifies Customer to stop because of an infringement allegation; (d) Customer’s failure to implement an update or replacement offered by Kobiton to avoid a Claim; or (e) Customer Content or third-party products.
   3. Infringement Mitigation. If a Claim is made or, in Kobiton’s opinion, is likely, Kobiton may, at its option and expense: (i) procure the right for Customer to continue using the Services; (ii) replace or modify the Services so that they are non-infringing and substantially equivalent in functionality; or (iii) if neither (i) nor (ii) is commercially reasonable, terminate the affected Order Form and refund any prepaid, unused fees for the remainder of the applicable Subscription Term.
   4. Procedures. Customer must promptly notify Kobiton in writing of any Claim, grant Kobiton sole control of the defense and settlement (except that Kobiton may not settle any Claim imposing liability or obligations on Customer without Customer’s prior written consent, not to be unreasonably withheld), and provide reasonable cooperation at Kobiton’s expense.
   5. Cap & Exclusive Remedy. Kobiton’s aggregate liability under this Section will not exceed the total fees paid and payable by Customer under the Order Form giving rise to the Claim during the twelve (12)-month period immediately preceding the first notice of the Claim, and this Section states Customer’s sole and exclusive remedy for any third-party allegation of intellectual-property infringement relating to the Services.
4. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.3 (General Restrictions); (b) under Section 3.3 (Customer Obligations) and Section 3.3 (Indemnification by Customer); or (c) from a party’s breach of its obligations in Section 11 (Confidential Information) (but excluding claims related to Customer Content).
5. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

11. CONFIDENTIAL INFORMATION

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Kobiton Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Kobiton without any marking or further designation. Customer Content will be deemed Confidential Information of Customer without the need for any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Kobiton, its subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 11. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by administrative or judicial process, applicable law, or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

12. GENERAL TERMS

1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.a will be null and void.
2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
3. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Georgia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. All disputes relating to or arising out of this Agreement shall be resolved in a state or federal court located in or encompassing Atlanta, Georgia, USA, and the parties hereby consent to the jurisdiction of such courts.
4. Promotional Rights. Customer agrees that Kobiton may refer Customer’s name, trademarks, logos, Feedback, comments, suggestions, case studies, testimonials, name and picture of individual issuing testimonials or comments in its marketing, advertising, customer references and website.
5. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
6. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
7. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
8. Entire Agreement. This Agreement, as may be updated from time to time and posted at https://kobiton.com/service-subscription-agreement/, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any additional or different legal terms contained in any Customer purchase order (such as a reference to Customer’s online terms of use) will not apply – even if accepted by Kobiton in writing. Customer acknowledges that the Services are subscription-based products, and that in order to provide improved customer experience Kobiton may make changes to the Services, and Kobiton will update the applicable Documentation accordingly.
9. Force Majeure. Except with respect to pay amounts owed hereunder, neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party (each, a “Force Majeure Event”), including but not limited to, such an act of God, a strike, blockade, war, act of terrorism, riot, governmental action, natural disaster, epidemic or pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
11. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
12. Government End-Users. Elements of the Services are commercial computer software. If the user of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services and Kobiton Code were developed fully at private expense. All other use is prohibited.
13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be handwritten signatures.