Definitions

Exhibit 1 to MSA

“Acceptable Use Policy” or “AUP” means the SmartBear Acceptable Use Policy, which is located currently at https://smartbear.com/legal/acceptable-use-policy, as updated from time to time.

“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Solutions or to receive Support.

“Account Information” means information about Customer and Customer’s Users provided to SmartBear in connection with the creation and use of Customer’s Accounts, including, without limitation, email addresses and other contact information, as well as information relating to Customer’s and Customer’s Users’ use of and engagement with the Solution.

“Additional Solution Terms” means the Solution Specific Terms, which are located currently at https://smartbear.com/legal/solution-specific-terms/, as updated from time to time.

“Affiliate” means with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.

“Agreement” means the SmartBear Master Solutions Agreement, including the Additional Solution Terms, Solution Support Manual, DPA (when applicable), and Policies.

“Change Order” means a written amendment or addendum to an Onboarding Services Order that describes any modification, addition, or deletion to the Services, schedule, or fees under that Onboarding Services Order. Each Change Order must be executed by authorized representatives of both parties to be valid and enforceable.

“Channel Partner” means any third-party authorized reseller or distributor of SmartBear Solutions (including third-party marketplaces).

“Claim” means any unaffiliated third-party claim.

“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without any restrictions or obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference or access to the disclosing party’s Confidential Information.

“Customer” means the entity named in the Order.

“Customer Data” means (a) Customer Provided Data, and (b) the content of any reports, summaries, output, or other data, information or materials to the extent derived from, or incorporating, Customer Provided Data, and that are created, generated, or processed via the Solutions by Customer or any User, which, in each case, is not publicly available. Customer Data excludes Account Information.

“Customer Provided Data” means all electronic data, text, messages or other materials (a) submitted to the Solutions by Customer or its Users in connection with Customer’ use of the Solutions; or (b) SmartBear receives from or on behalf of Customer outside of the Solutions in the course of performing Onboarding Services for purposes of importing or migrating such data, information, or material into the Solutions , in each case to the extent processed by SmartBear solely on behalf of Customer.

“Data Processing Addendum” or “DPA” means, in each case to the extent applicable, the Data Processing Addendum, which is located currently at https://smartbear.com/legal/data-processing-addendum.

“Designated National” means a national or resident of an Embargoed Country, or any Person that, at any time relevant to the Agreement, is on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.

“Dispute Notice” means a written notice describing a dispute pursuant to the Agreement, excluding any payment dispute.

“Documentation” means the then-current, generally available user guides, help files, and written instructions, that describe the functionality and use of the Solutions, as made available by SmartBear at https://support.smartbear.com/documentation/ or another location designated by SmartBear, and as updated from time to time.

“Effective Date” means the date of the Customer’s acceptance of the Agreement.

“Embargoed Country” means any country as to which the United States maintains an embargo at any time relevant to the Agreement.

“Escalation Notice” means a written notice requesting escalation of an unresolved dispute between the Customer and SmartBear.

“Excluded Claims” means any claim caused by (i) unauthorized use of the Solution by Customer, its Affiliates or Users; (ii) modification of the Solution by anyone other than SmartBear or its representatives; or (iii) the combination, operation, or use of the Solution with other data, hardware, or software not provided by SmartBear unless the Documentation refers to a combination with such hardware or software (without directing the user not to perform such a combination).

“Excluded Disputes” means (i) any action or proceeding that may be commenced by any third party against either party in connection with this Agreement, (ii) a party’s breach of its confidentiality obligations under this Agreement, (iii) disputes arising out of, or relating to, the infringement of the intellectual property rights of a party, or (iv) any action or proceeding or collections process initiated by SmartBear in connection with any payment dispute.

“Fees” means all charges associated with a Customer’s Order or Account.

“Feedback” means any suggestions or recommended changes to the SmartBear Technology and/or Solutions, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.

“Force Majeure Event” means any cause beyond the affected party’s reasonable control, including but not limited , acts of God, acts of government, epidemic, pandemic, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks.

“Initial Term” means the initial term specified in the applicable Order during which Customer subscribes to the Solutions.

“IP Claim” means any Claim brought against Customer alleging that Customer’s use of a Solution in accordance with the Agreement infringes such third party’s U.S. patent, copyright and/or trademark intellectual property rights.

“Licensed Software” means the object code version of the SmartBear software installed and operated by Customer on Customer’s own infrastructure or designated environment, as specified in an Order. Licensed Software includes any Updates made available by SmartBear, but excludes any third-party products, services, applications, or APIs.

“Onboarding Services” means any data migration, training, system onboarding, customer reporting or other onboarding services provided by SmartBear (or its Affiliates or sub-contractors) to Customer from time to time, in each case, as specified in an Order. Currently, Onboarding Services are only available for the QMetry Solutions and are subject to the QMetry Product Specific Terms.

“Order” means any ordering document between SmartBear and Customer that references this Agreement and details (a) the Solutions or Support ordered (b) the access rights or license metrics, (c) Fees payable to SmartBear, (d) the Order Term, and (e) any relevant, mutually-agreed additional terms and conditions.

“Order Term” means the Initial Term and any subsequent Renewal Term(s) of an Order.

“Policies” means any and all SmartBear policies incorporated into this Agreement, including the Acceptable Use Policy and Privacy Notice.

“Promotional Materials” means any content or communications in any medium created, distributed, or used by or on behalf of SmartBear to advertise, market or promote any products or services, whether for internal or external use.

“Privacy Notice” means the SmartBear Privacy Notice, which is located currently at https://smartbear.com/privacy, as updated from time to time.

“Renewal Term” shall have its meaning set forth in section 9(b) of the SmartBear Master Solutions Agreement.

“SaaS” means the hosted, cloud-based software-as-a-service offerings provided by SmartBear and made accessible to Customer over the internet, as specified in an Order. SaaS includes access to the applicable software functionality, hosting infrastructure, and any associated Updates or Documentation, but excludes any third-party products, services, applications, or APIs.

“SmartBear” means (i) for Customers located in the United States or Canada, SmartBear Software, Inc; and (ii) for Customers located outside the United States or Canada, SmartBear Ireland Limited.

“SmartBear Technology” means all proprietary technology, materials, content, know-how, tools, templates, APIs, support materials, training materials, and any other software or technology developed or made available by or on behalf of SmartBear (excluding the Solutions and Documentation). SmartBear Technology includes SmartBear’s websites and the content published thereon, any modifications or derivative works thereof, and all associated intellectual property rights.

“Solution” or “Solutions” mean the SmartBear-provided SaaS and/or Licensed Software, in each case as identified in an Order, including any related Updates or Documentation provided by SmartBear. “Solution” excludes any Third-Party Products, services, applications, or APIs.

“Solution Data” means the anonymized, aggregated and statistical data derived from Customer’s operation and use of the Solution.

“Solution Support Manual” means the SmartBear Support Manual, which is located currently at /support/media/pdf/ssg.pdf, as updated from time to time.

“Taxes” means any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.

“Trial Terms of Use” means the SmartBear Trial Terms of Use, which is located at https://smartbear.com/legal/trial-terms-of-use/, and may be updated from time to time.

“Update” means any bug fixes, patches, minor improvements, or enhancements to the Solution made generally available by SmartBear to subscribing customers, but excludes separately priced new products or modules.

“User” or “Users” means any individual who is authorized by Customer to use the Solutions, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates.

“Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are connected with or accessible through the Solution.