These Tolmo Terms of Service (this “Agreement”) govern use of the Services as made available by Tolmo, Inc. (“Tolmo”) to the company or entity on behalf of which you entered into this Agreement (“You” or “Your”). Tolmo and You may be referred to herein collectively as the “Parties” or individually as a “Party”.

1. Agreement to Terms and Conditions

BY CLICKING “I ACCEPT,” BY ACCESSING THE SERVICES, OR BY EXECUTING AN ORDER FORM, YOU AGREE TO BE BOUND BY THIS AGREEMENT, EFFECTIVE AS OF THE DATE YOU FIRST CLICK “I ACCEPT," FIRST ACCESS OR USE THE SERVICES, OR EXECUTE AN ORDER FORM, WHICHEVER IS EARLIEST (THE “EFFECTIVE DATE”). THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE FULL LEGAL AUTHORITY TO BIND YOU TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.

2. Definitions

(a) “Authorized Users” means Your employees and contractors who You authorize to use the Services.

(b) “Documentation” means the documentation relating to the Services if and as provided by Tolmo to You (including any revised versions thereof), which may be updated from time to time upon notice to You.

(c) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(d) “Order Form” means a mutually executed order form between You and Tolmo that references and is incorporated into this Agreement and sets forth the Services and other related details which may include, without limitation Fees and term applicable thereto.

(e) “Ordering Information” means the pricing, Subscription details, and other commercial terms as set forth in an Order Form, or as otherwise presented to You directly via the Services.

(f) “Services” means the online technology platform designed to perform security and vulnerability testing on Your software and codebase, as more particularly described or identified in the Documentation.

(g) “Tolmo IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, Documentation and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

3. Data Processing and Privacy Policy

With respect to any personal data processed by Tolmo on Your behalf in connection with the Services, the Data Processing Addendum, available at https://tolmo.com/legal/data-processing-addendum (the “DPA”), will apply and is incorporated into this Agreement. You acknowledge that You have reviewed Tolmo’s Privacy Policy, available at https://tolmo.com/legal/privacy/, which describes how Tolmo collects, uses, and discloses information in connection with the Services.

4. Access and Use

(a) Services. Subject to the terms and conditions of this Agreement, Tolmo hereby grants You a limited, non-exclusive, non-transferable (except in compliance with Section 14) right to use (and permit Authorized Users to and use) the Services in accordance with the Documentation and the terms of this Agreement.

(b) Use Restrictions. You will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Services to any other person or entity, or otherwise allow any person or entity to use the Services for any purpose other than for the benefit of You in accordance with this Agreement; (iv) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law; (v) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vi) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Tolmo for use expressly for such purposes; or (vii) use the Services, the Documentation, or any Confidential Information of Tolmo to develop, offer, license, market, or sell any product or service that competes with or is substantially similar to the Services.

(c) Authorized Users. You may permit Authorized Users to use the Services in accordance with the Documentation and the terms of this Agreement, provided that You are responsible for all acts or omissions by Your Authorized Users in connection with their use of the Services and their compliance with the terms and conditions of this Agreement, including, without limitation, with Your obligations and the restrictions set forth in Section 4(b). You will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Tolmo if You know or reasonably suspect that any user name and/or password has been compromised.

(d) Ownership of Tolmo IP. Subject to the limited rights expressly granted hereunder, Tolmo reserves and, as between the Parties will solely own, the Tolmo IP and all rights, title and interest in and to the Tolmo IP. No rights are granted to You hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(e) Feedback. From time to time You or Your employees, contractors, representatives may provide Tolmo with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). You hereby grant Tolmo a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Tolmo’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services. For clarity, Feedback is not considered Confidential Information (as defined below).

(f) Third-Party Services. Certain features and functionalities within the Services may allow You and Your Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”). Tolmo does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.

5. Support

(a) Support Services. Subject to Your compliance with this Agreement, Tolmo will make available to You and Your Authorized Users its then-current technical support for the Services via the in-product support features and email (collectively, “Support”). Support will be available during Tolmo’s standard business hours, unless otherwise specified in the applicable Order Form. Tolmo may update its Support processes and channels from time to time upon reasonable notice to You.

(b) Response Times. Tolmo will use commercially reasonable efforts to provide an initial response to Support requests within forty-eight (48) hours of receipt. The Parties may agree to different response time commitments in an applicable Order Form, whereby the terms of such Order Form will govern.

(c) Remedies. In the event any Support is not performed with reasonable skill, care and diligence, Tolmo will, upon written notice from You specifying the nature of the deficiency in reasonable detail, re-perform the applicable Support to the extent necessary to correct the deficient performance. You acknowledge and agree that such re-performance will constitute Your sole and exclusive remedy, and Tolmo’s sole and exclusive liability, with respect to any deficient Support performance.

6. Fees

In consideration of Your access to and use of the Services during the Term, You will pay Tolmo the non-refundable fees set forth in each applicable Order Form, or as otherwise set forth in the Ordering Information presented to You via the Services (collectively, the “Fees”). Fees set forth in an Order Form will be due and payable within thirty (30) days of the date of Tolmo’s invoice therefor. Fees not governed by an Order Form will be applicable to (i) Your election to purchase a subscription to the Services (“Subscription”), which may be billed on a monthly or annual basis, as selected by You, (ii) fees for Your purchase of usage of the Services or credits for consumption within the Services (“Usage Fees”); or (iii) Your other purchases as made available to You via the Services.

(a) Late Payments. If You fail to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Tolmo may suspend Services until all payments are made in full. You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by You to Tolmo hereunder, other than any taxes imposed on Tolmo’s income.

(b) Self-Serve Subscriptions and Purchases. If You do not have an Order Form with Tolmo and You purchase a Subscription or make other purchases directly via the Services, the following will apply:

(i) Transactions; Payments. Tolmo may request additional information relevant to Your purchase of a Subscription or other purchase made directly via the Services (each, a “Transaction”), including Your credit card number, the credit card expiration date and Your email and postal addresses for billing and notification (such information, “Payment Information”), and in such case You agree to promptly furnish such Payment Information to Tolmo. You represent and warrant that You have the legal right to use all payment method(s) represented by any such Payment Information. You expressly authorize Tolmo (or its third-party payment processor) to charge Your designated payment method (such as a credit card) for any Fees (including Usage Fees) on the applicable payment date, including any applicable taxes. If Tolmo cannot charge Your selected payment method for any reason (such as expiration or insufficient funds), You remain responsible for any uncollected amounts, and Tolmo will attempt to charge the payment method again as You may update Your Payment Information. You agree to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated by Tolmo to You. All payments are non-refundable and non-transferable except as expressly provided in this Agreement. All fees and applicable taxes, if any, are payable in United States dollars.

(ii) Subscriptions. Subscriptions are offered on a monthly or annual basis, and will renew automatically for the Subscription period for which you elect. Monthly Subscriptions are charged monthly; annual Subscriptions are charged annually in advance. If You purchase a Subscription, You will owe the applicable Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the then-current Subscription Fee each time Your Subscription renews. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE TOLMO TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If You purchase a Subscription, Tolmo (or its third-party payment processor) will automatically charge You each month or year, as applicable, beginning on the date of commencement of the Subscription, using the Payment Information which You have provided until You cancel Your Subscription. By agreeing to this Agreement and electing to purchase a Subscription, You acknowledge that its Subscription has recurring payment features and You accept responsibility for all recurring payment obligations prior to cancellation of its Subscription by You or Tolmo pursuant to the terms of this Agreement.

(iii) Cancelling Subscription. YOUR PURCHASES ARE FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF ANY SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, Tolmo reserves the right to cancel one or more Transactions for any reason; if Tolmo cancels Transaction, Tolmo will refund any payment remitted by You to Tolmo for such Transaction. Without limiting the foregoing, You may cancel a Subscription at any time by providing at least sixty (60) days’ advance written notice to Tolmo via email at legal@tolmo.com, but please note that such cancellation will be effective at the end of the then-current Subscription period (e.g., at the end of the applicable annual Subscription term). EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. You are responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If You cancel, Your right to use the Services will continue until the end of the then-current Subscription period and will then terminate without further charges.

7. Customer Materials

(a) Access to Your Code and Accounts. You will provide and maintain, at Your sole cost and expense, read-only access for Tolmo to Your source code, object code, compiled code, scripts, configuration files, and other software components, including as deployed in Your production environment, as well as Your cloud service provider accounts (including accounts with Amazon Web Services or similar providers), the roles, credentials, and API keys You issue to Tolmo for such access, and test or sandbox accounts, in each case as reasonably necessary to enable Tolmo to provide the Services (collectively, “Your Code and Accounts”).

(b) Customer Materials. As between You and Tolmo, You own and retain all right, title and interest in and to all Customer Materials. You hereby grant Tolmo and its licensors a non-exclusive, worldwide, royalty-free right and license to (i) use, reproduce, display, perform and modify the Customer Materials solely for the purpose of hosting, operating, improving, and providing the Services, (ii) access, review, copy, scan, and test Your Code and Accounts for the purpose of performing security and vulnerability testing and providing the Services, and (iii) create and develop Aggregate Data. “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of You through the Services or to Tolmo in connection with Your use of the Services, including Your Code and Accounts, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Tolmo and made available through or in connection with the Services. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Your and/or Your Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Services. Tolmo will not be liable or responsible for any delay in, or failure to perform, its obligations under this Agreement (including the provision of the Services) to the extent such delay or failure results, in whole or in part, from Your breach of Section 7(a) or this Section 7(b). For clarity, (i) Tolmo will not use any Customer Materials to train or fine-tune any AI/ML models; and (ii) Tolmo does not permit its third-party AI/ML service providers to use any Customer Materials to train or fine-tune their models.

8. Confidential Information

(a) Confidentiality. “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of Tolmo. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Tolmo may use and modify Your Confidential Information of in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.

9. Publicity

Either Party may, with the other Party’s prior written consent (which will not be unreasonably withheld), use or refer to the other Party’s name, trademarks, service marks, or logos in any marketing materials, business development activities, press releases or other publicity-related matter for the purpose of marketing, publicizing or promoting a Party’s business.

10. Representations and Warranties; Disclaimer

(a) Mutual Representations. Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.

(b) Your Additional Representations. You represent and warrant that (i) Tolmo’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between You and any third-party; and (ii) You own and have all necessary rights, permissions, consents, and authority to allow Tolmo to perform the Services, including any vulnerability and security testing, on the applicable systems on which You deploy the Services, including any systems hosted on third-party cloud or hosting services.

(c) Disclaimer. THE SERVICES AND OTHER TOLMO IP ARE PROVIDED ON AN “AS IS” BASIS, AND TOLMO MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU OR TO ANY OTHER PARTY REGARDING THE TOLMO IP, THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.

(d) Vulnerability and Security Testing Disclaimer. YOU ACKNOWLEDGE THAT THE SERVICES ARE DESIGNED TO SCAN, TEST, AND PROBE YOUR CODE AND ACCOUNTS AND YOUR PRODUCTION ENVIRONMENT FOR SECURITY VULNERABILITIES, AND THAT SUCH TESTING MAY, BY ITS NATURE, CAUSE ERRORS, BUGS, BREAKS, DATA LOSS, CORRUPTION, PERFORMANCE DEGRADATION, SERVICE INTERRUPTIONS, DOWNTIME, UNAVAILABILITY, OR OTHER ADVERSE EFFECTS TO YOUR CODE AND ACCOUNTS, YOUR PRODUCTION ENVIRONMENT, OR ANY PRODUCTS, SERVICES, OR SYSTEMS THAT RELY ON OR INTERACT WITH YOUR CODE AND ACCOUNTS (COLLECTIVELY, “TESTING IMPACTS”). TOLMO WILL NOT BE LIABLE, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR AND IN CONNECTION WITH, ANY TESTING IMPACTS OR ANY SECURITY INCIDENT, BREACH, UNAUTHORIZED ACCESS, DOWNTIME, INTERRUPTION, UNAVAILABILITY, OR ANY OTHER LOSS, DAMAGE, LIABILITY, OR HARM TO YOUR CODE AND ACCOUNTS, YOUR PRODUCTION ENVIRONMENT, YOUR PRODUCTS OR SERVICES, OR ANY THIRD-PARTY SYSTEMS ARISING OUT OF OR RELATING TO THE SERVICES OR TOLMO’S ACCESS TO OR TESTING OF YOUR CODE AND ACCOUNTS. YOU ARE SOLELY RESPONSIBLE FOR (I) MAINTAINING APPROPRIATE BACKUPS OF YOUR CODE AND ACCOUNTS AND DATA PRIOR TO ANY USE OF THE SERVICES, (II) ALL TESTING IMPACTS, AND (III) ANY AND ALL CLAIMS, DAMAGES, OR LOSSES ASSERTED BY YOUR END USERS, CUSTOMERS, OR ANY OTHER THIRD PARTY ARISING FROM OR RELATED TO ANY TESTING IMPACTS. TOLMO DOES NOT WARRANT ANY RESULTS OF THE SERVICES OR THAT THE SERVICES WILL OPERATE AS INTENDED, BE FIT FOR ANY PARTICULAR PURPOSE, OR IDENTIFY ANY OR ALL VULNERABILITIES OR OTHER ISSUES, AND TOLMO DISCLAIMS ALL RESPONSIBILITY FOR THE FOREGOING, INCLUDING WITHOUT LIMITATION THAT YOUR SYSTEMS ARE SECURE.

11. Term and Termination

(a) Term. This Agreement shall commence on the Effective Date and continue for the term set forth in the applicable Order Form (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive periods of the same length as the Initial Term (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless a Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of then-current Term. The execution of any subsequent Order Form(s) with a term ending after the then-current Term will extend the Term and the applicable Services until the end of such additional Order Form(s). Notwithstanding the foregoing, if You have not entered into an Order Form, the Term of this Agreement will commence on the Effective Date and remain in effect for so long as You are accessing or using the Services, unless earlier terminated in accordance with this Section 11.

(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. In addition, (i) Tolmo may terminate this Agreement immediately upon written notice to You if Tolmo reasonably believes that Your continued access to or use of the Services poses a security risk or threat of harm to the Services, Tolmo’s systems, or Tolmo’s business; and (ii) if you do not have an Order Form with Tolmo (i.e., you signed up for the Services directly via the Services), Tolmo may terminate this Agreement for its convenience at any time by giving You thirty (30) days’ prior written notice.

(c) Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2, 3, 4(d), 4(e), 6, 7(b), 8, 10(c), 10(d), 11(c), 11(d), 12, 13, and 14.

(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 4(a) and Section 9 will terminate and You will immediately cease using the Services; and (ii) You will promptly return or destroy, at Tolmo’s sole option, all Tolmo Confidential Information in Your possession or control and, upon Tolmo’s request, certify in writing that such Confidential Information has been returned or destroyed. No expiration or termination will affect Your obligation to pay all Fees accrued through the effective date of termination, or entitle You to any refund.

12. Limitation of Liability

(a) Limitation of Liability. EXCEPT FOR (I) ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF YOUR PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

(b) Total Liability. IN NO EVENT WILL TOLMO’S TOTAL CUMULATIVE LIABILITY TO YOU OR YOUR AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY YOU TO TOLMO IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY TOLMO TO YOU FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT TOLMO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

13. Indemnification

(a) Indemnification by Tolmo. Subject to Section 13(b), Tolmo will defend You against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Your use of the Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless You against any damages and costs awarded against You or agreed in settlement by Tolmo (including reasonable attorneys’ fees) resulting from such Claim. If the Services become, or in Tolmo’s opinion are likely to become, the subject of such a Claim, Tolmo may, at its sole option and expense: (i) procure for You the right to continue using the Services; (ii) modify or replace the Services, or the affected component thereof, to make them non-infringing without material loss of functionality; or (iii) if neither of the foregoing is commercially reasonable, terminate this Agreement or the affected Order Form and refund to You any prepaid but unused Fees for the terminated Services, covering the remainder of the then-current Subscription or Order Form term. This Section 13(a) states Tolmo’s sole and exclusive obligations, and Your sole and exclusive remedies, with respect to any Claim that the Services infringe or misappropriate a third party’s Intellectual Property Rights.

(b) Exclusions. Tolmo’s obligations under Section 13(a) will not apply if the underlying Claim arises from or as a result of: (i) Your breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Your failure to use any enhancements, modifications, or updates to the Services that have been provided by Tolmo; (iv) modifications to the Services by anyone other than Tolmo; or (v) combinations of the Services with software, data or materials not provided by Tolmo.

(c) Indemnification by You. You will defend, indemnify and hold harmless Tolmo from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Tolmo, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Tolmo that: (i) the Customer Materials or its use by Tolmo in accordance with this Agreement infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Your or an Authorized User’s use of the Services or Documentation to the extent such use was not in accordance with this Agreement; (iii) is based on the manufacture, sale, distribution or marketing of any of Your products or services; (iv) is based on a breach of Section 4(b) by You; or (v) arises from or relates to any Testing Impacts, including without limitation any claim brought by Your end users, customers, or any other third party for any damage, loss, unavailability, interruption, or degradation of Your products, services, or systems caused by or arising out of the Services.

(d) Indemnification Procedure. The Party seeking indemnification under this Section 13 (the “Indemnified Party”) will: (i) promptly notify the other Party (the “Indemnifying Party”) in writing of the applicable Claim, provided that any delay in providing such notice will not relieve the Indemnifying Party of its obligations under this Section 13 except to the extent the Indemnifying Party is materially prejudiced by the delay; (ii) give the Indemnifying Party sole control over the defense and settlement of the Claim, provided that the Indemnifying Party will not settle any Claim in a manner that admits fault or liability on behalf of, or imposes any monetary obligation or non-monetary obligation requiring performance by, the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed; and (iii) provide the Indemnifying Party, at the Indemnifying Party’s reasonable expense, with reasonable cooperation and assistance in the defense and settlement of the Claim. The Indemnified Party may participate in the defense of a Claim with counsel of its own choosing at its own expense.

14. General

Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except that Tolmo may assign or transfer this Agreement to a successor entity in the event of a merger, consolidation, or sale of all or substantially all of its assets, and any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. You will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Services are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, together with all Order Forms and exhibits hereto, constitutes the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. In the event of a conflict between the terms of this Agreement, the DPA, and/or an Order Form, the DPA, followed by the terms of this Agreement, will control except, with respect to this Agreement, to the extent the applicable terms in the Order Form expressly override those in this Agreement. Tolmo may update this Agreement from time to time by posting revised terms at the URL where this Agreement is made available; provided, however, that if You have entered into an Order Form with Tolmo, the terms of this Agreement in effect at the time such Order Form was executed will be the terms applicable to that Order Form, and no amendment or update to this Agreement will go into effect with respect to You until the execution of a subsequent Order Form. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the city and county of San Francisco, California and the Parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. Notices to Tolmo must be sent to Tolmo, Inc., Attn: Legal Department, 2261 Market Street, Suite 63212, San Francisco, CA 94114, with a copy by email to legal@tolmo.com. This Agreement may be executed in counterparts, and electronic signatures will have the same weight and effect as originals.