Master Solutions Agreement

This Agreement is between SmartBear and Customer and governs the acquisition and use of SmartBear Solutions.

By clicking “Agree” (or similar button or checkbox), executing an Order, accepting an Order by issuing a purchase order against such Order, or by accessing or using any Solution, Customer agrees to be bound by this Agreement, including all incorporated documents such as the Additional Solution Terms, Acceptable Use Policy, Solution Support Manual, and other Policies, as referenced herein. If Customer does not agree to these terms, Customer should not click “Agree,” execute an Order, issue a purchase order, or access or use the Solutions.

If the individual accepting this Agreement does so on behalf of a company or other entity, that individual represents and warrants that they have the legal authority to bind such entity to this Agreement. In that case, “Customer” refers to that entity.

1. Definitions. Capitalized terms used in this Agreement or any Order have the meanings set forth in Exhibit 1.
2. SmartBear Solutions. This Agreement applies to Customer’s use of the Solutions and related Support, as set forth in one or more Orders. Unless otherwise specified in an Order or the Additional Solution Terms, the terms of this Agreement apply to both SaaS and Licensed Software. Additional usage and entitlement details may be found in the Additional Solution Terms and all Support is governed by the Solution Support Manual. SmartBear may modify the Solutions or underlying SmartBear Technology from time to time, provided such changes do not materially diminish the core functionality of the applicable Solution during an Order Term.
3. Use of Solutions. Subject to this Agreement and during an Order Term, SmartBear hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Solutions, Documentation, and SmartBear Technology as specified in an Order, solely for Customer’s internal business operations by Users.
4. Customer’s Responsibilities
   1. Acceptable Use Policy. Customer will comply with SmartBear’s Acceptable Use Policy, which is incorporated into and forms part of this Agreement.
   2. Accounts. When creating an Account, Customer agrees to keep its Account Information current, accurate, and complete. SmartBear will use and store all Account Information in accordance with its Privacy Notice. The Privacy Notice does not apply to Customer Data.
   3. Users. Customer may authorize Users to access and use the Solutions, in accordance with the terms of this Agreement, the applicable Orders, and the Documentation. Customer is solely responsible for any activities under Customer’s Account and/or of its Users, including use of the Solutions, Documentation, SmartBear Technology, Third-Party Products, as well as for Customer’s Users’ compliance with the terms of this Agreement. The logins for the Users may not be shared and shall only be used by the User to whom the login is initially assigned. Customer will be responsible for maintaining the confidentiality of User login credentials and will notify SmartBear promptly of any loss, misuse, or unauthorized disclosure of such login credentials of which Customer becomes aware. Each User must be Customer’s or its Affiliate’s employee or contractor and, in each case, under Customer’s control. Customer hereby agrees that the act or omission of a current or former User shall be deemed the same as if performed by Customer.
   4. Affiliates. Customer’s Affiliates may serve as Users under this Agreement. Alternatively, Customer’s Affiliates may enter into their own Orders as mutually agreed with SmartBear, which creates a separate agreement between each such Affiliate and SmartBear incorporating this Agreement with the Affiliate treated as “Customer”, provided that Customer shall be responsible for all acts or omissions of any Customer Affiliate as if such acts or omissions had been those of Customer under this Agreement. Neither Customer nor any Customer Affiliate has any rights under each other’s separate agreement with SmartBear, and breach or termination of any such separate agreement affects only that agreement.
5. Customer Data
   1. Use of Customer Data. Customer authorizes SmartBear and its Affiliates to use Customer Data to provide the Solutions and Support to Customer, and perform all related obligations owed to Customer under this Agreement. SmartBear will process Customer Data only as required and permitted under this Agreement, the scope of which is further detailed in the applicable Order and, when applicable, the DPA. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents, warrants, and covenants that: (i) it has (and will have) processed, collected, and disclosed all Customer Data in compliance with applicable law and provided any notice and obtained all consents and rights required by applicable law to enable SmartBear to lawfully process Customer Data as permitted by this Agreement; and (ii) SmartBear’s processing of the Customer Data in accordance with this Agreement or (with respect to Customer Data) Customer's instructions does not and will not infringe upon or violate any applicable law or any rights of any third party.
   2. Data Security. SmartBear has implemented and will maintain an information security program that uses physical, technical and organizational measures designed to protect Customer Data from unauthorized access, destruction, use, modification or disclosure. Further information about SmartBear’s security program is available on the SmartBear Trust Center located at https://trust.smartbear.com/.
   3. Restricted Data. Unless otherwise expressly stated in the applicable Additional Solution Terms, and except for limited Account Information required to establish and administer User accounts as set forth in Section 4(b), Customer and its Users may only upload non-production, non-sensitive data (e.g., synthetic or dummy data) when using the Solutions. Without limiting the foregoing, Customer and its Users shall not upload, transmit, or otherwise provide to SmartBear any Customer Data subject to heightened legal or regulatory protections, including but not limited to: (i) classified or export-controlled data (e.g., ITAR, EAR); (ii) regulated health, financial, or payment card data (e.g., HIPAA, GLBA, PCI DSS); or (iii) sensitive or special category personal data as defined under applicable privacy laws. Customer is solely responsible for reviewing and complying with all applicable Additional Solution Terms regarding permissible use of Customer Data. SmartBear shall have no responsibility or liability for any resulting claims, damages, or losses arising from Customer’s failure to comply with the foregoing.
   4. Solution Data. Notwithstanding any other provision in this Agreement or the DPA to the contrary, SmartBear may collect, produce, and analyze Solution Data and may use such Solution Data for SmartBear’s lawful business purposes. Without limiting the confidentiality rights and protections set forth in this Agreement, SmartBear owns and reserves all right, title, and interest in and to the Solution Data, including any intellectual property rights therein and thereto. Nothing herein shall be construed as prohibiting SmartBear from owning and utilizing the Solution Data.
6. Intellectual Property
   1. Customer Ownership Rights. Customer and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and SmartBear obtains no rights in the foregoing except for the express rights granted in this Agreement.
   2. SmartBear Ownership Rights. SmartBear and its licensors own, reserve, and retain all right, title, and interest in and to the Solutions, Documentation, SmartBear Technology and Solution Data, including any intellectual property rights in and to any of the foregoing. Feedback regarding the SmartBear Technology and Solutions shall be considered SmartBear Confidential Information and SmartBear shall own all right, title and interest in and to all Feedback.
7. Third-Party Products. SmartBear may enable Customer to integrate certain Third-Party Products with the Solutions. Use of Third-Party Products are governed by the applicable third-party provider’s terms and conditions that accompany them. SmartBear shall have no responsibility or liability for any payment obligations that arise as a result of any interaction with any Third-Party Product. SmartBear is not responsible or liable to Customer or any other party for any Third Party-Products (including under any third-party provider’s terms and conditions) or for any relationship with any Third-Party Product provider, including, without limitation, for any disclosure, modification, or deletion of Customer Data resulting from use of such Third-Party Products. Notwithstanding any other provision in this Agreement, Customer shall be solely responsible for its relationship with any Third-Party Product provider, including without limitation Customer's interaction with any such Third-Party Product through the Solution.
8. Fees and Payment
   1. Fees and Payment. All Fees are set forth in the applicable Order. Fees are due and payable in full, without setoff, and Customer shall pay SmartBear such Fees, within thirty (30) days from the invoice date or as stated in the applicable Order. Payment obligations are non-cancellable and, except as expressly permitted in this Agreement, Fees paid are non-refundable.
   2. Late Payments. If Fees owed are more than thirty (30) days overdue, then SmartBear may suspend Customer’s access to the Solutions until such unpaid Fees are paid in full. If Customer fails to make any payment when due (without limiting SmartBear's other rights and remedies), SmartBear may charge interest on the past due amount at the rate of 1.5% per month calculated daily or, if lower, the highest rate permitted under applicable law. Customer will reimburse SmartBear for its reasonable expenses of collection.
   3. Applicable Taxes. Fees do not include any Taxes. Customer agrees to pay applicable Taxes associated with its purchases hereunder, including those that SmartBear is legally required to collect. If SmartBear has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless, prior to the invoice date, Customer provides SmartBear with a valid tax exemption certificate authorized by the appropriate taxing authority.
   4. Purchases from Channel Partners. Customer’s use of any Solutions procured through a Channel Partner will be subject to the terms of this Agreement, and all fees are payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner. If Solutions are purchased through a Channel Partner, any refund may be issued by SmartBear to the Channel Partner only. Such refund will fully satisfy SmartBear’s obligations under this Agreement, and the Channel Partner will be solely responsible for providing any refund to the Customer.
9. Term, Termination and Suspension
   1. Term. This Agreement is effective as of the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue until all Order Terms for all Orders have expired or all Orders have been terminated.
   2. Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days’ prior to the expiration of the relevant Order Term, this Agreement and each Order will automatically renew at SmartBear’s then-current prices for the same number of Users and entitlements, (including any add-ons), for additional one-year periods (“Renewal Term”). Notwithstanding anything to the contrary, in the event of non-renewal by a party, this Agreement shall continue to apply to any outstanding Orders until the expiration of such Orders.
   3. Suspension. SmartBear may suspend Customer’s access to the Solutions and/or Customer’s Account on the following grounds: (i) late payment or non-payment of undisputed Fees, subject to Section 8(b); (ii) Customer’s or its Users’ breach of Section 14(g) (Compliance with Law and Export Control) or the Acceptable Use Policy; or (iii) if suspension is necessary to prevent a security incident or harm to Customer, SmartBear, or SmartBear’s other customers.
   4. Termination for Cause. Either party may terminate any or all Orders if (i) the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of written notice describing such breach, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition to the foregoing, SmartBear may terminate any or all Orders immediately upon written notice to Customer if Customer or any User violates Section 14(g) (Compliance with Law and Export Control) or the Acceptable Use Policy.
   5. Effect of Termination. Upon expiration of an Order Term or termination of an Order for any reason: (i) all rights granted to Customer therein will immediately cease, (ii) Customer will immediately cease all use of the Solutions, and (iii) Customer will promptly pay to SmartBear any unpaid amounts owed to SmartBear for such Order.
10. Confidentiality. Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information may 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.
11. Warranties/Disclaimer of Warranties
    1. SmartBear Solutions.
       1. SmartBear warrants to Customer that the Licensed Software will perform substantially in accordance with the applicable Documentation for a period of ninety (90) days after delivery.
       2. SmartBear warrants to Customer that the SaaS will perform substantially in accordance with the applicable Documentation for the subscription term in the Order, under normal use and circumstances.
    2. Limited Remedy. If the Licensed Software or the SaaS do not conform to this SmartBear Solution Warranty in any material respect and Customer makes a reasonably detailed warranty claim within thirty (30) days of discovering such material non-conformity, then, as Customer’s exclusive remedy and SmartBear’s sole liability and obligation, SmartBear will use commercially reasonable efforts to correct the non-conforming Licensed Software or SaaS.
    3. Warranty Disclaimer.

       EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), THE SOLUTION IS PROVIDED "AS IS" AND SMARTBEAR SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.

       SMARTBEAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

       SMARTBEAR MAKES NO WARRANTY OF ANY KIND THAT THE SOLUTION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

       THE WARRANTIES IN THIS SECTION 11 DO NOT APPLY, AND SMARTBEAR STRICTLY DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

12. Indemnification
    1. Indemnification by SmartBear. SmartBear will defend Customer, and its officers, directors, and employees from an IP Claim, and will indemnify Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by SmartBear (including reasonable attorneys’ fees) resulting from such IP Claim. SmartBear will have no liability or obligation with respect to any IP Claim if such claim is an Excluded Claim. If Customer’s use of the Solution results (or in SmartBear’ opinion is likely to result) in an IP Claim, SmartBear may at its own option and expense (i) procure for Customer the right to continue using the Solution; (ii) repair, replace or modify the SmartBear Technology to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable as determined by SmartBear, then SmartBear may terminate Customer’s subscription or license to the Solution whereupon SmartBear will refund Customer, on a pro-rated basis, any Fees Customer has previously paid SmartBear for Solution access that Customer will not actually receive due to such termination.
    2. Indemnification by Customer. Customer will defend SmartBear and its Affiliates from any Claim, and will indemnify SmartBear and its Affiliates from and against any damages and costs finally awarded against SmartBear and its Affiliates or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized or unlawful supply, disclosure, or processing of Customer Data; or (ii) the Customer Data’s infringement of third party intellectual property rights.
    3. Indemnification Procedures. The indemnifying party’s obligations are subject to receiving from the indemnified party: (i) prompt written notice of the Claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (ii) the exclusive right to control the Claim’s investigation, defense and settlement, and (iii) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle any Claim without the indemnified party’s prior written consent, which may not be unreasonably withheld, unless the settlement unconditionally releases the indemnified party of all liability and does not impose any ongoing obligations of such indemnified party. The indemnified party may participate in the defense of any Claim, at its option and expense.
    4. Sole Remedy. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND SMARTBEAR’S SOLE LIABILITY FOR THE IP CLAIMS IDENTIFIED IN THIS SECTION.
13. Limitation of Liability
    1. EXCEPT FOR A VIOLATION OF SMARTBEAR’S INTELLECTUAL PROPERTY RIGHTS OR FOR ANY BREACH OF SECTION 10 (CONFIDENTIALITY), PROVIDED THAT ANY UNAUTHORIZED ACCESS TO CUSTOMER DATA BY A THIRD PARTY SHALL NOT BE DEEMED TO BE A BREACH OF SECTION 10 FOR PURPOSES OF THIS SECTION 13(a), AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY. FURTHER, FOR THE AVOIDANCE OF DOUBT, THE OBLIGATION OF A PARTY TO INDEMNIFY THE OTHER PARTY UNDER SECTION 12 OF THIS AGREEMENT AGAINST A THIRD-PARTY CLAIM, INCLUDING ONE WHICH SEEKS INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, SHALL NOT BE LIMITED BY THIS SECTION 13(a).
    2. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS, A VIOLATION OF SMARTBEAR’S INTELLECTUAL PROPERTY RIGHTS, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, EACH PARTY’S TOTAL AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO SMARTBEAR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
    3. THE PARTIES AGREE THAT THIS SECTION 13 (LIMITATION OF LIABILITY) WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE DISCLAIMERS, LIMITATIONS OF LIABILITY, AND EXCLUSIONS SET FORTH HEREIN WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
14. Miscellaneous.
    1. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, SmartBear may assign this Agreement in its entirety (including all Orders), without Customer’s consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
    2. Entire Agreement. Subject to Section 14(c), this Agreement, together with any Order, constitutes the entire agreement and supersedes any and all agreements or communications between Customer and SmartBear, including but not limited to Customer registration forms, requests for proposal or quote, customer or third-party procurement portals or applications, non-disclosure agreements, and purchase orders, regarding the subject matter. Customer’s acceptance of an Order may be effectuated by issuance of a purchase order against such Order; notwithstanding the foregoing, no provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Agreement, and (3) the Documentation. SmartBear hereby expressly disclaims the application of any Customer purchase order terms or procurement terms, standards, or requirements (whether accepted via click-through or otherwise) that purport to cover the subject matter of this Agreement.
    3. Amendment; Modifications. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party, including through the incorporation of the amended Agreement in a signed Order. SmartBear may revise its Policies, Additional Solution Terms, Solution Support Manual or the DPA at any time by posting a new version on its website, and such new version will become effective on the date it is posted. If the modification materially reduces Customer’s rights or protections, Customer must notify SmartBear in writing of its reasonable rejection of the modification within thirty (30) days of the modification. In the event of such rejection, this Agreement will continue under its original provisions, and SmartBear and Customer will work in good faith to resolve Customer’s concerns. If the parties fail to agree, Customer may terminate this Agreement pursuant to Section 9(b) (Renewal), which will become effective at the end of the then-current term.
    4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
    5. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by
       1. nationally recognized overnight delivery service or US mail to the mailing address provided in this Agreement; or
       2. electronic mail. Notices to Customer shall be sent to the e-mail address provided for Customer’s Account administrator or as indicated in the signature section. The address for notices to SmartBear is: SmartBear Software Inc., 450 Artisan Way, Somerville, MA 02145, USA with a copy to [email protected] by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt.
    6. Promotional Materials. Customer agrees that its name, logo, and/or use case may be used by SmartBear in Promotional Materials, provided that SmartBear observes all guidelines and other instructions or requirements regarding such usage provided by Customer. The rights granted herein shall be worldwide and perpetual; provided that Customer may request that SmartBear stop the use of Promotional Materials by submitting an email to [email protected] at any time.
    7. Compliance with Law and Export Control. Each party must comply with all laws applicable to its business in its performance of obligations or exercise of rights under this Agreement. The Solutions, SmartBear Technology (and the components thereof), and related technical information used in connection with this Agreement may be subject to export control and economic sanctions laws, rules and regulations, including without limitation export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies or the export controls applicable in other jurisdictions. Each party acknowledges and agrees that the Solutions and SmartBear Technology (and the components thereof) shall not be exported, or re-exported in, to, or by any Embargoed Countries or Designated Nationals in violation of such export controls.
    8. Force Majeure. 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 results from any Force Majeure Event. If a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all Orders on written notice to the non-performing party.
    9. Governing Law. The SmartBear entity entering into this Agreement, and the law that will apply, is as follows: (i) if Customer is located in the U.S. or Canada, the laws of the Commonwealth of Massachusetts, without regard to conflicts of law provisions; (ii) if Customer is located outside of the U.S. or Canada, the laws of Ireland. The parties exclude application of the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Subject to Section 14(j), the parties hereby consent to the venue and jurisdiction of the applicable courts in the applicable jurisdiction as set forth above.
    10. Dispute Resolution. In the event of a dispute by Customer (except any payment dispute), prior to initiating any action, Customer shall submit a Dispute Notice to the appropriate SmartBear representative. If the parties are unable to resolve the dispute within ten (10) business days after the Dispute Notice, either party may call for escalation by delivering an Escalation Notice. In that case, each party shall select an executive with the authority to make commitments that would resolve the dispute, and the two executives shall meet within ten (10) business days after the Escalation Notice and shall negotiate in good faith to resolve the dispute.

        Except with respect to any Excluded Dispute, the parties agree to submit claims, demands, disputes or controversies arising out of or relating to this Agreement, or the failure or refusal to perform the whole or any part hereof, to arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except where those rules conflict with this provision, in which case this provision controls. Arbitration shall be conducted before a single arbitrator unless the amount in dispute exceeds $250,000. If the amount in dispute exceeds $250,000, it shall be decided by 3 arbitrators, 1 to be selected by each party and the parties’ appointed arbitrators to agree upon the third. Under no circumstances are the arbitrators authorized to award damages contrary to Section 13 (Limitation of Liability) of this Agreement. The arbitration shall be held in Boston, MA. Absent agreement of the parties, or an order by the arbitrator(s) based upon compelling evidence of need, there shall be no discovery in the arbitration. The arbitrators shall be authorized to award costs and attorney’s fees or to allocate them between the parties. Any court with jurisdiction shall enforce this clause and enter judgment on any award.

    11. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Solutions were developed at private expense and are “Commercial Items” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R.§227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Solution is made available to Customer with only those rights as provided under the terms and conditions of this Agreement. Any provisions of this Agreement that are inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. federal government.