Legal Solution Specific Terms

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Solution Specific Terms

The applicable provisions of these Solution Specific Terms apply to the extent the applicable Solution is included in Customer’s Order and if the version of that Solution includes relevant features or components as described in the applicable Solution Specific Terms. For purposes of Customer’s use of the Solution, these terms supplement the Master Solutions Agreement and form a part of the Agreement between Customer and SmartBear.

All capitalized terms used and not defined herein shall have the meanings ascribed in the Agreement.

SaaS Solutions Specific Terms

  1. License Types. Access to the SaaS Solutions is granted pursuant to one or more of the license types set forth below, as specified in the applicable Order:
    1. Fixed Access: is single access, meaning it can be accessed by only one User, with a unique username and password. Access to the SaaS Solution may not be reassigned other than for the permanent transfer of access to the SaaS to another User if the eligible User is no longer employed by Customer upon written notice to SmartBear. An eligible User may access the SaaS Solution with a unique username and password on only one device at a time.s
    2. Floating (Concurrent) Access: The number of running instances of the SaaS Solution or the number of individuals simultaneously having access to the SaaS Solution may not exceed at any one time the number of floating seats.
    3. Usage-Based Access: is on a time-based, unit-based, or event-based basis during the Order Term as set forth in an Order.

Licensed Software Specific Terms

  1. License Types. Access to the Licensed Software is granted pursuant to one or more of the license types set forth below, as specified in the applicable Order:
    1. Fixed (Named) License: is single instance, meaning it can be activated by only one User, with a unique username and password, on a single computer, computing device and has a fixed license key. Customer must acquire and dedicate a license for each User that Customer wishes to access the Licensed Software. A separate license is required for each User and shall not be shared. The Licensed Software may not be reassigned other than for the permanent transfer of the license to another User if the eligible User is no longer employed by Customer upon written notice to SmartBear.
    2. Floating (Concurrent) License: can be activated for multiple Users, service accounts and machine combinations including virtual machines and containerized environments. The number of running instances of Licensed Software or the number of Users simultaneously having access to the Licensed Software may not exceed at any one time the number of floating seats licensed. In private networks, one computer or computing device shall be designated as the “license server”, where the license is installed, and all other devices will require access to the license server to run the Licensed Software. Customer is solely responsible for configuring and maintaining the license server environment and ensuring access control mechanisms are in place.
    3. Server Application License: can be installed on one server machine and may be accessed by multiple Users. The license key is dedicated to the designated computer or computing device and will only function on this computer or computing device.
  2. Permitted Copies and License Usage. Customer may make copies of the Licensed Software and Documentation only as reasonably necessary to use the Licensed Software as licensed and for back-up and archival purposes; provided that, each copy of the Licensed Software and Documentation contains all titles, trademarks, and copyright and restricted rights notices as in the original, and Customer does not exceed the license quantities or other entitlements in the applicable Order. For the avoidance of doubt, SmartBear owns and reserves all right, title, and interest in and to such copies, including any intellectual property rights therein or thereto.
  3. Number of Instances. Unless otherwise specified in the Order, Customer may install up to one (1) production instance of each Licensed Software Solution included in an Order on systems owned or operated by Customer or its Users.
  4. License Verification. Upon SmartBear’s written request, Customer will promptly confirm in writing whether its use of the Licensed Software Solutions is in compliance with the applicable Order(s). SmartBear or its agents may audit Customer’s use of the Licensed SmartBear Solutions no more than once every twelve (12) months to confirm compliance with this Agreement and all applicable Orders. If Customer has exceeded its use of the Licensed SmartBear Solutions, SmartBear may invoice Customer for the excess use and Customer shall pay SmartBear all amounts under such invoice within thirty (30) days from the invoice date.

AI Enabled Features

  1. The Solution may leverage third party artificial intelligence platforms ("AI Enabled Features"). Customer acknowledges that the use of AI Enabled Features is at its sole discretion.
    1. If Customer chooses to use an AI Enabled Feature included in the Solution, Customer acknowledges and agrees that SmartBear may transmit certain Customer Data (“Input Data”) with the third-party artificial intelligence platforms as may be required for the AI Enabled Feature to operate (e.g., the html of Customer’s website that Customer chooses to analyze with an AI Enabled Feature).
    2. Customer acknowledges and understands that SmartBear’s AI Enabled Features incorporate functionality driven by third-party large language models, including Llama, and third-party providers including OpenAI and Google (Gemini) (collectively, “AI Providers”). Use of such AI Enabled Features is governed not only by this Agreement, but also by the applicable terms and conditions of the relevant AI Providers. If SmartBear adds a new AI Provider in the future, it will notify Customer, and such provider’s applicable terms and conditions will similarly govern Customer’s use of any features powered by that provider.
    3. Certain AI Enabled Features are made available as paid add-ons and are subject to Fees at the time of purchase. In addition, SmartBear reserves the right to introduce Fees for other AI Enabled Features, that are currently included in the Solutions, upon providing prior notice. If Customer does not agree to such Fees, or any of these AI Terms, Customer’s sole remedy is to cease its use of the affected AI Enabled Features.
    4. AI Content. The output insights generated and returned by the AI Enabled Features (“AI Output”) are based on the Customer Data processed on and through the Solution. Customer is solely responsible for the AI Output. AI Output shall be deemed Customer Data subject to the AI Provider’s terms and conditions. Due to the nature of machine learning, AI Output may not be unique, and the AI Features may generate the same or similar output for other users.
    5. SmartBear does not permit AI Providers to use Input Data or Output Data to train or improve their foundational or large language models.
    6. AI Enabled Features Disclaimer. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN THE AGREEMENT, THE AI ENABLED FEATURES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SMARTBEAR AND THE APPLICABLE THIRD-PARTY AI PROVIDER MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE AI ENABLED FEATURE, OR THE INFORMATION, TEXT, AND CONTENT INCLUDED IN THE AI OUTPUT, OR INPUT OF THE CUSTOMER DATA, INCLUDING WITHOUT LIMITATION, ACCURACY OF THE RESULTS, AVAILABILITY, NON-INFRINGEMENT, SUITABILITY, RELIABILITY, OR ANY INFORMATION PROVIDED THROUGH THE AI ENABLED FEATURES. CUSTOMER UNDERSTANDS THAT AI OUTPUT MAY BE SUSCEPTIBLE TO RISKS COMMONLY ASSOCIATED WITH INFORMATION STORED ON THE CLOUD. SMARTBEAR WILL HAVE NO LIABILITY OR RESPONSIBILITY ARISING IN ANY WAY FROM THE USE OF THE AI ENABLED FEATURES OR ANY ERRORS OR OMISSIONS CONTAINED IN THE AI OUTPUT.

BugSnag

  1. Customer Data. Notwithstanding Section 5(c) (Restricted Data) of the Agreement, Customer acknowledges and agrees that BugSnag requires the processing of certain production application data, including error logs, stack traces, and device or environment details, in order to provide the Solution. Such data may include personal information relating to end users. To the extent Customer Data processed through BugSnag includes personal information, SmartBear will act as a processor on behalf of Customer and the processing will be governed by the DPA. Customer remains responsible for ensuring that such data does not include Customer Data subject to heightened legal or regulatory protections as described in Section 5(c) of the Agreement (e.g., HIPAA, GLBA, PCI DSS, ITAR, EAR, or sensitive/special category personal data as defined under applicable privacy laws), except as expressly permitted in the DPA and the Agreement.

Free Version Access

  1. Free version, freeware, or free version license (“Free Trial”) access is limited to the User who is specifically named in the Solution or Licensed Software registration and may only be used on one computer or computing device at a time. This access is (i) subject to the Trial Terms of Use; and (ii) not eligible for Maintenance and Support Services other than the materials and discussion groups that may be accessed generally via the SmartBear online community at https://community.smartbear.com. In the event of any conflict between the Trial Terms of Use and the Agreement, the Trial Terms of Use shall govern for Free Trial access only.

QMetry

  1. Onboarding Services. These QMetry “Onboarding Services Terms” apply only to the extent that onboarding services are included in Customer’s Order.
    1. Scope and Segmentation. SmartBear will provide the Onboarding Services as described in the applicable Order. Onboarding Services are purchased separately from the Solutions and are provided on a time-and-materials basis against pre-purchased bundles of hours. SmartBear will perform Onboarding Services in a professional and workmanlike manner but does not guarantee any particular result.
    2. Bundled Hours and Scheduling. Bundled hours are consumed as Onboarding Services are performed and expire twelve (12) months after purchase, unless otherwise specified in the Order. Scheduling of Onboarding Services is subject to resource availability.
    3. SmartBear Materials. SmartBear will remain the sole owner of all reports, guides, workbooks, forms, templates, and any other materials it provides to the Customer while delivering the Services (the “Materials”). This ownership also applies to any updates, improvements, customizations, compilations, or new versions of those Materials created by either party. All related intellectual property rights, including patents, copyrights, trademarks, trade secrets, and similar rights, will belong exclusively to SmartBear. The only exception is any Customer Data that may be included in the Materials, of which Customer retains all rights. SmartBear grants Customer a non-exclusive, non-transferable license to use the Materials solely for Customer's internal business purposes.
    4. Fees and Payment. Fees for Onboarding Services are specified in the Order and are due in accordance with the payment terms set forth in the Order. Bundled hour fees are non-refundable. Hours beyond the purchased bundle require Customer's prior written approval and will be billed at SmartBear's then-current rates. Travel and other expenses, if applicable, are additional and will be billed as incurred.
    5. Customer Cooperation. Customer acknowledges that timely provision of access, information, cooperation from personnel, and suitable equipment may be essential to satisfactory performance. SmartBear is not responsible for delays due to Customer-requested scope or scheduling changes unless agreed in writing.
    6. Warranty and Remedies. SmartBear warrants it will perform Services in a professional and workmanlike manner. This warranty is exclusive of all other warranties, express or implied, including implied warranties of merchantability or fitness for a particular purpose. Customer must report deficiencies within thirty (30) days of performance in order to receive warranty remedies. SmartBear will use commercially reasonable efforts to cure deficiencies within ten (10) business days. Customer's sole remedy is re-performance of deficient services or, if SmartBear cannot re-perform, refund of prepaid fees for such services. All other warranties are disclaimed.
    7. Change Order. Any changes to an Onboarding Services Order will be documented in a Change Order. No Change Order will be effective unless it is in writing and signed by authorized representatives of both parties. Once executed, each Change Order will form part of, and be governed by, the terms of the Agreement and the underlying Onboarding Services Order.
    8. Term and General Provisions. These Terms apply while SmartBear performs Onboarding Services until the Onboarding Services are completed or bundled hours expire or are fully used. SmartBear may use subcontractors and remains responsible for their performance. Orders control over conflicting provisions in these Terms.