Perfana | General terms and conditions of service

Effective starting October 1, 2023

These Perfana general terms and conditions of service (these “GTCs”) describe your rights and responsibilities as a customer of the Services set forth in the Order Form concluded between the Perfana entity set forth therein (“Perfana”, “we” or “us”) and your company as set forth therein (“You” or “Customer”).

These GTCs apply to all Order Forms concluded between our parties and all the Services provided to You by Perfana, regardless of whether these terms are duly executed on Your behalf, and will form an integral part of your Agreement with Perfana.

Capitalized terms used herein shall have the meaning as set forth in article [x] below.

1.   Scope of Agreement

1.1. Definitions & interpretation

Capitalized terms used in these GTCs shall have the meaning attributed to them in Section 19 below or as otherwise defined herein. Perfana Policies referred to herein shall form an integral part of the Agreement.

1.2. Services

The Agreement governs your use of our Services, related Support, and any Additional Services. These GTCs include all Policies (including our Privacy Policy), the Service Specific Terms, and apply to all Order Forms concluded between our parties and all the Services provided to You by Perfana, regardless of whether these terms are duly executed on Your behalf. The Services and their permitted use are further described in the Documentation. The term “Services” includes Documentation unless otherwise specified.

1.3. Excluded Services

These GTCs do not apply to our downloadable On Prem Software Products, use of which requires a separate license agreement with us. For clarity, however, any software we provide as part of the Services (including mobile applications) and the use thereof in relation thereto is subject to these GTCs.

2.   Accounts; Authorized Users

2.1. Authorized Users

Only Authorized Users may access and use the Services. Certain Services may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. You are responsible for compliance with the Agreement by all Authorized Users, including what Authorized Users do with your data (including all Customer Data), and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Services must be solely for the benefit of you or your Affiliates and must be within the Scope of Use as set forth in Section 3 (Use of the Services).

2.2. Administrators.

Through the Services, you may be able to specify certain Authorized Users as Administrators, who will have important rights and controls over your use of Services and User Accounts. This may include concluding Order Form for additional Services (which result in additional fees becoming applicable), creating or amending User Accounts, or any other modification allowed for thereunder. You are responsible for whom you allow to become Administrators and any actions they take, including as described above.

2.3. Authorized User Consent.

You will provide all required disclosures to and will obtain and maintain all required consents from Authorized Users to allow (a) Perfana’s provision of the Services hereunder, and (b) You and the Administrators to process such Authorized User details to described in these GTCs.

2.4. Responsibility for Authorized Users.

You are responsible for compliance by all Authorized Users with these GTCs, including their activities when using the Services and any Data used in relation thereto, even if those Authorized Users are not from your organization or domain. We may display our User Notice to End Users at sign up, account creation, Services registration, or in-product. If you use single sign-on (SSO) for identity management for accessing our Services and such will bypass these screens and our User Notice, you are responsible for displaying our User Notice to the Authorized Users and for any damages resulting from your failure to do so.

3.   Use of the Services

3.1. Your Use Rights

As from the effective date of an Order Form Perfana grants You, for your internal business purposes only and for no other purposes, a non-exclusive, non-transferable, territory restricted, limited right to access and use (the designated part of) the Services for the Subscription Term set forth in the applicable Order Form under the conditions and requirements set forth in the applicable terms and conditions, including these GTCs, for any agreed number of Authorized Users. The access right for the agreed Services will be provided by Perfana to You by means of the delivery of the applicable access log-in to Your account no later than when Perfana has received payment of the applicable fees. You are responsible for accessing your account to determine that Perfana has received payment, and your order has been processed. All deliveries under these GTCs will be electronic. For the avoidance of doubt, You acknowledge that Perfana has no further delivery obligation with respect to making the agreed Services available to You and that no acceptance process is applicable in respect thereof, unless explicitly agreed otherwise in an Order Form.

3.2. Responsibilities

You are responsible for each of the following: (i) protecting the names and passwords of Your Authorized Users; (ii) preventing, and for promptly notifying Perfana of, any unauthorized access to or use of the Services; (iii) each Authorized User’s compliance with the terms and conditions of the Agreement, including these GTCs and any applicable Services Specific Terms and each Authorized User’s acts and omissions; (iv) using the Services within the permitted scope and limitations and only in accordance with the Agreement, including these GTCs; (v) maintaining archival and backup copies of all Customer Data (and any prior versions thereof) outside of the instance being used by Perfana to provide the Services; and (vi) using the Services in accordance with the Documentation and applicable laws.

3.3. Restrictions

You agree that you shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any element (including software) comprising or in any way making up a part of the Services made available by Perfana. You shall not release to any third party the results of any evaluation of the Service performed by or on behalf of You for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Perfana. You shall not (and shall not permit others to) without the explicit prior written approval of Perfana: (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the Services, or make it available for access by third parties, including, without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Services or reproduce any part thereof; (iii) disassemble, reverse engineer or decompile any delivered Services (including performing penetration test not authorized by Perfana); (iv) access the Services in order to develop a competing product or service; (v) use Services to provide a service for others; (vi) incorporate any part of the Services into a product or service you provide to a third party; (vii) interfere with or otherwise circumvent mechanisms in the Services intended to limit your use; (viii) publicly disseminate information regarding the performance of the Services; (ix) use, include, store or send Malware from or through the Services, (x) otherwise affect in Perfana’s sole discretion the integrity of the Services, or (xi) encourage or assist any third party to do any of the foregoing. For purposes of these SaaS Terms of Service, “Malware” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the Services or Perfana ´s IT infrastructure in any manner.

3.4. No inter-dependencies

You acknowledge that the access rights to (any part of the) Services included in an Order Form are being purchased separately from any of our other Services as may be offered by Perfana. Payment obligations for any Services are not contingent on the purchase or use of any of Perfana other products (and for clarity, any purchases of access rights to the Services are separate and not contingent on each other, even if listed on the same Order Form).You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of the Services beyond the current agreed term or any new releases), or dependent on any oral or written public comments made by Perfana regarding future functionality or features.

3.5. Non-assert

You covenant, on behalf of yourself and your successors and assigns, not to assert against Perfana, its affiliates or licensors, any rights, or any claims of any rights, in any (part of the) Services, and You hereby voluntarily waive any right to demand from Perfana, its Affiliates or licensors any rights to any Services, except the rights which are expressly granted to You under the Agreement.

3.6. System Requirements

You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for accessing the Services as specified in the Documentation. Perfana will have no obligations or responsibility under the Agreement for issues caused by your use of any third-party hardware or software not provided by Perfana.

3.7. Export Restrictions.

The Services are subject to export restrictions by certain governments, and you agree to comply with all applicable export and import Laws in your access to, use of, and download of the Services (or any part thereof). You shall not (and shall not allow any third-party to) remove or export or allow the export or re-export of any part of the Services or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government, the European Union, or the United Nations, or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States, the European Union or United Nations agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of the Customer Data is controlled under such aforementioned Laws. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Services for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government, the European Union and the United Nations when applicable.

3.8. Indemnification by You

You will defend, indemnify and hold harmless Perfana from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against Perfana by a Third-party relating to (a) Your use of the Services in violation of the Agreement, including these GTC,  Perfana Policies ,and/or the Documentation, (b) your Customer Materials, as defined in Section 5.2; (c) any non-Perfana content or data used by you in connection with the Services; or (d) any Customer Material Perfana is authorized to access or use hereunder. This indemnification obligation is subject to you receiving (i) written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim (provided that you shall not be entitled to accept any statement as to, or an admission of fault, culpability or failure to act by or on behalf of, Perfana or any of its Affiliates); and (iii) all reasonably necessary cooperation of Perfana at your expense.

4.   Data and Privacy Terms

4.1. The use of Customer Data

You retain all right, title, and interest in and to Customer Data submitted to the Services. Subject to these GTCs, and to the extent reasonably required to provide the Services to you and to improve our Services, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Customer Data. The aforementioned license also includes the right to make modifications and derivative works to the extent deemed required by us to use or present Customer Data within the Services. We may also access your accounts, End User Accounts, and your Services with Authorized User permission in order to respond to your support requests.

4.2.  Customer Data Compliance Obligations.

You shall ensure that You comply with all applicable Laws and have legal title, adequate license rights or other sufficient rights in Customer Data to allow for the processing of Customer Data by Perfana when providing the agreed Services, including regarding the Personal Data on any individual involved in respect therein by You, and the posting or uploading thereof is not illegal, or obscene or of a similar nature not allowed for use by Perfana. Other than the security requirements referred to under Section 5.4 below, we assume no responsibility or liability for the Customer Data, and you acknowledge and agree that you are solely responsible for the Customer Data and the consequences of submitting and using such with the Services.

4.3. Removals and Suspension.

We have no obligation to monitor any content uploaded to the Services. Nonetheless, if we deem such action necessary based on your violation of these GTCs or any instruction from us in that regard, we may (a) remove Customer Data from the Services, or (b) suspend your access to the Services (in whole or in part). We will use reasonable efforts to provide you with advance notice of removals and suspensions when practical, though we may suspend your access or remove Customer Data immediately without notice if – in our sole discretion – we are of the opinion that your actions endanger the operation of the Services or use thereof by any other user.  We have no liability to you for removing or deleting Customer Data from or suspending your access to any Cloud Products as described in this Section 4.3.

4.4. Privacy

Perfana may collect certain data and information from you in connection with your use of the Services and otherwise in connection with the Agreement. All such data and information will be collected and used by Perfana in accordance with Perfana’s Privacy Policy, which you acknowledge. You may disable data collection by the Services of certain data through the settings in the Services.

5.   Perfana Commitments

5.1. Delivery

We will deliver the login instructions for Services to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that the Order Form you have submitted to Perfana has been accepted by us. All deliveries under these Terms will be electronic.

5.2. Support and Maintenance

During the Subscription Term and provided the Agreement is not terminated prematurely, Perfana will provide Support and Maintenance regarding the Services in accordance with the applicable Support and Maintenance Schedule for the respective Services.

5.3. Additional Services

Subject to the Agreement, you may purchase Additional Services from Perfana, which Perfana will provide to you pursuant to the applicable Order Form. Additional Services shall be subject to additional policies and terms as specified by Perfana in the respective applicable Perfana Policies.

1. Perfana Deliverables. Perfana will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that Perfana provides in connection with any Additional Services (“Perfana Deliverables”). You may use any Perfana Deliverables provided to you only in connection with the Services, subject to the same usage rights and restrictions as for the Services.
2. Customer Materials. You agree to provide Perfana with reasonable access to your materials, systems, personnel or other resources (including the instances used to provide the Services) as reasonably necessary for Perfana’s provision of Additional Services (“Customer Materials”). If you do not provide Perfana with timely access to Customer Materials, Perfana’s performance of Additional Services will be excused until you do so. You retain your rights in your Customer Materials, subject to Perfana’s ownership of any underlying Services, Perfana Deliverables or other Perfana Technology. Perfana will use Customer Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Customer Materials to provide them to Perfana for such purposes.

5.4. Security

We shall adhere to the security requirements as set forth in the Perfana Policies when providing the Services.

5.5. Return Policy

As part of our commitment to customer satisfaction, you may terminate your initial Order Form of the applicable Services for no reason or any reason, by providing notice of termination and discontinuing the use thereof no later than thirty (30) days after the Order Form effective date. In the event you terminate your initial Order Form under this Section, Perfana shall disable your access to the Services and Perfana will refund you the amount paid under such Order Form. This termination and refund right applies only to your initial Order Form and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that Perfana may change this practice in the future in accordance with Section 17 (Changes to the Agreement).

5.6. Future Functionality; Separate Purchases

You acknowledge that the Services referenced in an Order Form are being purchased separately from any of our other Services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other Services (and for clarity, any purchases of Services and Additional Services are separate and not contingent on each other, even if listed on the same Order Form). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Services beyond the current term), or dependent on any oral or written public comments made by Perfana regarding future functionality or features.

5.7. Subcontractors

Perfana shall be entitled to subcontract all or any part of its obligations under the Agreement without your prior written approval. We shall at all times remain responsible for all obligations performed by our subcontractors to the same extent as if such obligations were performed by Perfana itself.

6.   Renewals, add-ons, payment and taxes

6.1. Term license

All Services are offered on an annual subscription basis, unless specified otherwise in an Order Form. Services renew automatically at the end of their respective Subscription Term for the same period, unless terminated by You or us against the end of the respective Subscription Term in writing (including via email) observing a notice period of at least one (1) month or such other term as specified in the applicable Perfana Policies. Cancelling a subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Services continuing to be offered and will be charged at the then-current rates.

6.2. Add-ons

You may add Authorized Users, increase number of Systems under Test covered, or otherwise increase your use of Services by placing a new Order Form or modifying an existing Order Form, subject to Perfana’s agreement thereof. Unless otherwise specified in the applicable Order Form, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current term.

6.3. Payment

The fees applicable to the Services shall be payable by You to Perfana in Euros in advance within thirty (30) calendar days after your receipt of an undisputed invoice therefor.  If a purchase order number is required by you in order for an invoice to be paid, you must provide such purchase order number to us by emailing the purchase order number to support@perfana.io. For Services provided at any non- Perfana location, You will reimburse Perfana for all pre-approved travel, lodging and meal expenses, which Perfana may charge as incurred. Other than as expressly set forth in the Agreement, all amounts are non-refundable, non-cancellable and non-creditable. You agree that Perfana may charge You for renewals, additional users, expenses and unpaid fees, as applicable. Unless explicitly stated otherwise herein, all amounts paid hereunder by you are non-refundable, non-cancelable and non-creditable.

6.4. Late payment interest

If any undisputed payments are not received from You by the due date or You breach any other obligation under the Agreement or any SOW, a late payment interest equal to the Dutch commercial statutory late payment interest may be apply by Perfana as from the due date of such payment.

6.5. Taxes

The fees specified in the Agreement, or any SOW exclude any taxes or duties payable in respect thereof in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Perfana, You must pay to Perfana the amount of such taxes or duties in addition to any fees owed under the Agreement or the respective SOW. Notwithstanding the foregoing, You may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, You will have the right to provide to Perfana any such exemption information, and Perfana will use reasonable efforts to provide such invoicing documents as may enable You to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available. You will provide Perfana reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

6.6. Reseller purchases

If you make any purchases through an authorized partner or reseller of Perfana (“Reseller”) the following applies: (a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Services if we do not receive the corresponding payment from the Reseller; (b) Your order details (e.g., the Services you are entitled to use, the number of Authorized Users, Systems under Test, applicable term, etc.) will be as stated in the Order Form placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order Form as communicated to us; (c) If you are entitled to a refund under these GTCs, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you; (d) Resellers are not authorized to modify these GTCs or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these GTCs;  and (e) The amount paid or payable by the Reseller to us for your use of the applicable Services under these GTCs will be deemed the amount actually paid or payable by you to us under these GTCs for purposes of calculating the liability cap in Section 12.

7.   No-Charge Services

We may offer certain Services to you at no charge, including free accounts, trial use, and Beta Versions as defined below (collectively, “No-Charge Services”). Your use of No-Charge Services is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in relation to the termination or expiration of the Agreement). Except as otherwise set forth in this Section, the terms and conditions of these GTCs, including Section 3.2 (Restrictions), fully apply to No-Charge Services. We may terminate your right to use No-Charge Services at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta versions of Services, and any pre-release and beta features within generally available Services, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Services. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to use Beta Versions, but the Beta Versions will still remain subject to this Section 7. All information regarding the characteristics, features or performance of any No-Charge Services (including Beta Versions) constitutes Perfana’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Services, including any Support and Maintenance, warranty, and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, PERFANA’S MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE SERVICES WILL BE €100.

8.   Ownership and Feedback

The Services are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Perfana and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Perfana Technology (including the Services) and the data resulting from (the processing by) the Services (e.g. test results, analytical (users) data). From time to time, you may choose to submit Feedback to us. Perfana may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in the Agreement limits Perfana’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

9.   Confidentiality

Except as otherwise set forth in the Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by 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 Perfana Technology and any performance information relating to the Services will be deemed Confidential Information of Perfana without 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 the Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 9 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 9. The Receiving Party’s confidentiality obligations will not apply to information which 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 also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). 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 appropriate equitable relief in addition to whatever other remedies it might have at law.

10.        Term and Termination

10.1.              Term

The Agreement is effective as of the Effective Date and continues until expiration or termination of the respective Order Forms between our parties.

10.2.              Termination for Cause

Either party may terminate the Agreement if the other party (a) fails to cure any material breach of the Agreement 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).

10.3.              Termination for Convenience

Provided you pay the applicable fees annually in advance, You may choose to stop using the Services and terminate the Agreement at any time for any reason upon written notice to Perfana, but, unless you are exercising your right to terminate early pursuant to Section 5.5 (Return Policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

10.4.              Effects of Termination

Upon any expiration or termination of the Agreement, your rights to access and use the Services terminate and you must cease using and delete (or at our request, return) all Confidential Information and all other materials of Perfana in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. If the Agreement is terminated by you in accordance with Section 10.2 (Termination for Cause), Perfana will refund you any prepaid Services fees covering the remainder of the then-current Subscription Term after the effective date of termination. If the Agreement is terminated by Perfana in accordance with Section 10.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to Perfana for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in the Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under the Agreement, by law, or otherwise.

10.5.              Survival

The following Sections will survive any termination or expiration of the Agreement: 3.2 (Restrictions), 3.8 (Indemnification by You), 6.3 (Payment), 6.4 (late payment interest), 6.5 (Taxes), 7 (No-Charge Services ) (disclaimers and use restrictions only), 8 (Ownership and Feedback), 9 (Confidentiality), 10 (Term and Termination), 11.2 (Warranty Disclaimer), 12 (Limitations of Liability), 13 (IP Indemnification by Perfana) (but solely with respect to claims arising from your use of the Services during the Subscription Term), 15 (Dispute Resolution) and 18 (General Provisions).

11.        Warranties and Disclaimer

11.1.              General Warranties

Each party represents and warrants that it has the legal power and authority to enter into the Agreement. If you are an entity, you represent and warrant that the Agreement and the Order Form is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of the Agreement.

11.2.              Warranty Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1 (General Warranties), ALL SERVICES AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND PERFANA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. PERFANA 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 PERFANA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PERFANA NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SERVICE  OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SERVICES (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE SERVICES ARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

12.        Limitations of Liability

12.1.              Consequential Damages Waiver

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

12.2.              Liability Cap

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

12.3.              Excluded Claims

“Excluded Claims” means (1) amounts owed by you under any Order Form, (2) either party’s express indemnification obligations in the Agreement, (3) your breach of Section 3.2 (Restrictions), or (4) claims which cannot be excluded or limited under mandatory applicable law.

12.4.              Nature of Claims and Failure of Essential Purpose

The parties agree that the waivers and limitations specified in this Section 12 (Limitations of Liability) 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 the Agreement is found to have failed of its essential purpose.

13.        IP Indemnification by Perfana

We will defend you against any claim brought against you by a third party alleging that the Services, when used as authorized under the Agreement, infringes any third-party patent, copyright or trademark, or misappropriates any third-party trade secret (a “Claim”), and we will indemnify you against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by Perfana (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Services is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right or license for your continued use of the Services in accordance with the Agreement; (ii) substitute substantially functionally similar Services; or (iii) terminate your right to continue using the Services and refund any license fees pre-paid by you for use of the Services for the terminated portion of the applicable Subscription Term. Perfana’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Perfana with respect to your license to Services in the twelve (12) month period immediately preceding the Claim is less than €50.000; (2) if the Services is modified by any party other than Perfana, but solely to the extent the alleged infringement is caused by such modification; (3) if the Services is used in combination with any non-Perfana product, software, service or equipment, but solely to the extent the alleged infringement is attributable by such combination; (4) to unauthorized use of Services; (5) to any Claim arising as a result of (y) circumstances covered by your indemnification obligations in Section 3.8 (Indemnification by You) or (z) any third-party deliverables or components contained with the Services; (6) to any unsupported release of the Services; or (7) if you settle or make any admissions with respect to a Claim without Perfana’s prior written consent. THIS SECTION 13 STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SERVICES OR OTHER ITEMS PROVIDED BY PERFANA UNDER THE AGREEMENT.

14.        Publicity Rights

We may identify you as an Perfana customer in our promotional materials. We will promptly stop doing so upon your request sent to sales@perfana.io.

15.        Dispute Resolution

15.1.              Informal Resolution

In the event of any controversy or claim arising out of or relating to the Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under the Agreement pursuant to Section 15.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 15.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

15.2.              Governing Law; Jurisdiction

The Agreement will be governed by and construed in accordance with the applicable laws of The Netherlands, without giving effect to the principles of that Country relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to the Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the court in Amsterdam, The Netherlands, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Amsterdam, The Netherlands, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

15.3.              Injunctive Relief; Enforcement

Notwithstanding the provisions of Section 15.1 (Informal Resolution) and Section 15.2 (Governing Law; Jurisdiction), nothing in the Agreement will prevent Perfana from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

15.4.              Exclusion of UN Convention and UCITA

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to the Agreement.

16.        Third Party Code

The Services includes code and libraries licensed to us by third parties, including open-source software. Such code and libraries are supplied by us to You on a “pass-through” basis only and are subject to the terms and conditions of the third-party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto (if any). See Third-party Code in Perfana Products for provisions regarding our use of third-party code.

17.        Changes to the Agreement

17.1.              Modifications Generally

We may modify the terms and conditions of the Agreement (including Perfana Policies) from time to time, with notice given to you by email, through the Services or through our website. Together with such notice, we will specify the effective date of the modifications.

No-Charge Services: You must accept the modifications to continue using the No-Charge Services. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Services.

Paid access rights: Typically, when we make modifications to the main body of the Agreement (excluding the Perfana Policies), the modifications will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 6.1 (Term license). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Order Form upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Services for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.

Perfana Policies: Our products and business are constantly evolving, and we may modify the Perfana Policies from time to time, including during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the Perfana Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to the Perfana Policies will take effect automatically as of the effective date specified for the updated policies.

18.        General Provisions

18.1.              Notices

Any notice under the Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Perfana Software BV, Groot Hertoginnelaan 134, The Hague, The Netherlands. Your notices to us will be deemed given upon our receipt.

18.2.              Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

18.3.              Assignment

You may not assign or transfer the Agreement without our prior written consent. As an exception to the foregoing, you may assign the Agreement in its entirety to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under the Agreement. Any attempt by you to transfer or assign the Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under the Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under the Agreement, in which case we will remain responsible for their compliance with the Agreement. Subject to the foregoing, the Agreement will inure to the parties’ permitted successors and assigns.

18.4.              Entire Agreement

The Agreement is the entire agreement between you and Perfana relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Perfana with respect to the Services or any other subject matter covered by the Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of the Agreement, and any such document relating to the Agreement will be for administrative purposes only and will have no legal effect.

18.5.              Conflicts

In event of any conflict between these GTCs and the Perfana Policies, the Perfana Policies will control with respect to their subject matter.

18.6.              Waivers; Modifications

No failure or delay by the injured party to the Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 17 (Changes to the Agreement), any amendments or modifications to the Agreement must be executed in writing by the authorized representatives of Perfana and you.

18.7.              Interpretation

As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of the Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

18.8.              Independent Contractors

The parties are independent contractors. The Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

18.9.              Suspension

In the event you breach any of your obligations hereunder, including but not limited to you not making any payment in full and in time when due, Perfana may suspend your license to use the Services and any and all other of its obligations hereunder.

19.        Definitions

Certain capitalized terms are defined in this Section 19, and others are defined contextually in the Agreement.

“Additional Services” means installation support, Training, or other (professional) services related to the Services provided to you by Perfana, as identified in an Order Form.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Agreement” means an Order Form, these GTCs and any Perfana Policies applicable to such taken together, forming the terms and conditions applicable to the Services set forth in the Order Form.

“Authorized Users” means the specific individuals whom you designate to use the applicable Services and for whom you have paid the required fees if applicable. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf.

“Customer Data” means data provided by You to Perfana being processed by Perfana in connection with the provision of Services under the Agreement, excluding data resulting from (the processing by) the Services (e.g. test results, analytical (users) data).

“Customer Materials” has the meaning given in Section 5.2.

“Documentation” means our standard published documentation for the Services, currently located at https://docs.perfana.io.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Services, Support and Maintenance or Additional Services.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“On Prem Software Products” means Perfana’s s on-premises software solutions for software validation.

“Order Form” means an order form, the content and form of which is determined by Perfana, specifying the Services you want to order from Perfana and which Perfana is willing to provide you with.

“Perfana Deliverables” has the meaning given in Section 5.2.

“Perfana Policies” means specific terms established by Perfana to apply to a particular Services are set forth therein and as made available by Perfana on https://perfana.io/legal.

“Perfana Technology” means the Services (including all No-Charge Services), Perfana Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“Scope of Use” means your authorized scope of use for the Services as specified in the applicable Order Form, which may include: (a) number and type of Authorized Users, (b) number and type of Systems Under Test, (c) numbers of licenses, copies or instances, or (d) entity, division, business unit, website, field of use, site/location, or other restrictions or billable units.

“Services” means Perfana’s commercially available downloadable services products. The Order Form will specify the Services that you may use.

“Subscription Term” means your permitted subscription period for a Services, as set forth in the applicable Order Form.

“Support and Maintenance” means Perfana’s support and maintenance services for the Services, as further described in the Support and Maintenance Schedule . Your level of Support and Maintenance will be specified in the Order Form.

“System Under Test” means the software applications and physical and/or cloud computing services resources that you choose to configure as a set in the Services as the applicable target of use.

“Training” means Perfana-provided training and certification services.

“User Notice” means the intellectual property and user restriction statement that Perfana may apply to all users of a Services, in general to be shown at the moment a user logs onto the respective Services.