TestReach

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF TESTREACH SERVICES.

THIS AGREEMENT SHALL BECOME EFFECTIVE BY YOU ACCEPTING (“ACCEPTING”) THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement is effective between You and Us as of the date of You Accepting this Agreement.

This Agreement was last updated on 11th February, 2025.

1. DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Conflict of Interest” means where the interests or benefits of TestReach or any of Our employees, contractors and agents, conflicts with Your interests or benefits.

Currency of this Agreement is as specified on the Order Form(s).

“Data Controller, Data Processor, Data Subject, Personal Data and Processing” shall have the same meaning as in the Data Protection Legislation, and their cognate terms shall be construed accordingly.

“Data Protection Legislation” means all applicable laws and regulations relating to the processing of Personal Data and privacy as may be applicable from time to time, which at the date of this Agreement means the Data Protection Act 1998, the GDPR (EU General Data Protection Regulation 2016/679), the UK General Data Protection Regulation (UK-GDPR), and any successor legislation.

“Exam” means an exam or series of questions comprised of Your Data for inclusion in TestReach’s Software Services, and submitted by You to Us or to Our Website or to any other domain name or website specified by TestReach.

“Intellectual Property Rights" shall mean patents, inventions, utility models, petty patents, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them), rights in know-how, moral rights, trade secrets and rights of confidence; all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may exist anywhere in the world at the date of the Agreement or Order Form or during the term of this Agreement.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Operational Tools” means systems and applications used by Us to manage the Purchased Services, which include but are not limited to systems to track and manage helpdesk requests, to track and manage Exam bookings, to track and manage customer relationships and an email system.

“Order Form” means a sales order, work order, statement of work, change order or any other signed document committing that You will purchase Services from Us as defined in the Order Form. Order Forms shall be deemed incorporated herein by reference.

“Professional Services” means any services undertaken for You by Our employees, contractors or agents, including but not limited to configuration of the Software Services, customisation of the Software Services, training, consulting services and provision of maintenance & support for the Software Services.

“Purchased Professional Services” means Professional Services that You or Your Affiliates purchase under an Order Form.

“Purchased Services” means Purchased Software Services and Purchased Professional Services.

“Purchased Software Services” means Software Services that You or Your Affiliates purchase under an Order Form.

“Services” means Software Services and Professional Services.

“Session-Based Exam” means an Exam where all Users take that Exam at the same time or within a period of up to 10 days.

“Software Services” means the online, Web-based applications and platform provided by Us via https://testreach.com (“Our Website”) or any other domain name or web address as designated by TestReach including associated online and offline components, and specifically excludes Third Party Components.

“Subscription Term” shall be the term comprised of the subscription start date and the subscription end date set forth in the Order Form. All Software Services and Professional Services set forth in the Order Form are valid for the duration of the Subscription Term as specified on the Order Form, after which they expire.

“Third-Party Components” means products and services including but not limited to online Web-based applications, offline software products, and Exam content that is provided by a third-party, that interoperate with the Software Services, and are identified as third-party applications.

“Users” means individuals who are authorized by You to use the Software Services, for whom the Software Services have been purchased (if required), and who have been supplied user identifications and passwords or codes to access the Software Services by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with whom You transact business; or Your candidates or students who are taking one or more tests.

“We”, “Us” or “Our” means TestReach Ltd., a limited company registered in Ireland.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

“Your Data” means all electronic data or information submitted by You or your Users to the Purchased Software Services and as submitted by You or Us to the Operational Tools, but does not include data that results from Your use or Users’ use of the Purchased Software Services such as tracking and audit trail data. Your Data may include personally identifiable information such as names and email addresses, and biometric data.

2. PURCHASED SERVICES

2.1. Provision of Purchased Software Services. Pursuant to the terms and conditions of this Agreement, We hereby grant You a limited, non-exclusive, non-transferable license to use the Purchased Software Services pursuant to the quantities specified on an applicable Order Form during a Subscription Term, provided that You remain liable and responsible for the actions and inactions of Users. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2. Access to Purchased Software Services. Unless otherwise specified in the applicable Order Form, access to the Purchased Software Services by Users is provided pursuant to a Subscription Term and is subject to usage limits, including for example the quantities specified in Order Forms. Unless otherwise specified, a quantity in an Order Form refers to the number of “Test + Supervision Units", “Test + Supervision Hours Units”, “Test Only Units", “Print Units”, "Marking + Moderation Units", "Management Licenses", "BI Licenses" or "DEX Licenses" or any other component of the Services as may be specified on the Order Form, and the Software Services may not be accessed more times than that quantity specified. A duration or length of time in an Order Form refers to the duration of remote exam proctoring required and the Software Services may not be accessed for a longer period than that duration specified. When the Software Services are accessed by Users, this constitutes usage of the Software Services and all quantities used will not be reinstated. Further, (i) User subscriptions are for designated Users and cannot be shared or used by more than one User, (ii) a User’s password may not be shared with any other individual and (iii) You may not reassign current User licenses to new Users.

If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Software Services promptly upon Our request, and/or pay any invoice for excess usage. Such Fees will be paid in accordance with Section 5 hereof.

2.3. Provision of Purchased Professional Services. (i) We shall perform the Purchased Professional Services as set forth in any executed Order Form, pursuant to quantities as may be specified in the Order Form. (ii) We shall assign an adequate number of suitably skilled, experienced and qualified individuals to deliver the Purchased Professional Services. (iii) While this Agreement is in force and for a period of 12 months from its expiry or termination for any reason, You will not solicit any person who is or has been employed by Us or has acted on Our behalf in the performance of the Purchased Professional Services, except where this is by Our prior written agreement. (iv) All Purchased Professional Services shall be delivered remotely unless stated otherwise on the Order Form. (v) In the event that Both Parties agree that Our employees, contractors or agents shall deliver Purchased Professional Services at a location that is not their usual place of work, then You will reimburse Us for reasonable travel and subsistence expenses incurred by Us (“Reimbursable Expenses”), in accordance with Our travel and expense policy. Receipts for Reimbursable Expenses will be provided on request by You and invoiced charges for Reimbursable Expenses are due net 30 days from the invoice date.

3. USE OF THE SOFTWARE SERVICES

3.1 Our Responsibilities. We shall: (i) provide You with Standard Technical Support at Regular SLA Levels for the Purchased Software Services, as defined in our Standard Technical Support Policy (copy available), for the Subscription Term of the Purchased Software Services as specified on the Order Form, and/or upgraded support if purchased and itemised on the Order Form, (ii) use commercially reasonable efforts to make the Purchased Software Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice) and which We shall schedule to the extent practicable during periods of least usage, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, national emergencies, epidemics, pandemics, strikes or other labour problems (other than those involving Our employees), or Internet service provider failures or delays, acts of third party providers, communication outage, cyber-attack or performance (or lack thereof) of third party providers, communication outage, cyber-attack or performance, (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

For each proctored Session-Based Exam, the exam date and volume of Users must be agreed in writing by both Parties (You and Us) in advance, (“Confirmed Exam Booking”). In the event that you cancel a Confirmed Exam Booking or reduce the volume of Users in a Confirmed Exam Booking, then the terms and conditions of Our Exam & Candidate Cancellation Policy (copy available) shall apply, which may include the forfeiture of Purchased Software Services.

We reserve the right to refuse to provide You with the Purchased Software Services if a Confirmed Exam Booking has not been agreed in advance for a proctored Session-Based Exam.

3.2 Your Responsibilities. You shall: (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Software Services only in accordance with applicable laws and government regulations. You shall not (a) make the Software Services available to anyone other than Users, (b) sell, resell, rent or lease the Software Services without Our written permission, (c) use the Software Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Software Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Software Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Software Services or their related systems or networks.

TestReach reserves the right to throttle or limit Software Services in the event of abuse, or abnormally excessive usage which could adversely impact on costs and/or performance of the Software Services.

3.3 Usage Limitations. Software Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Software Services that enable You to provide public websites, on the number of page views by visitors to those websites. The Software Services may provide real-time information to enable You to monitor Your compliance with such limitations.

3.4 License by You to Host Your Data. You grant TestReach and its Affiliates a worldwide, limited term license to host, copy, transmit and display Your Data as necessary for Us to provide the Software Services and Professional Services in accordance with this Agreement. Subject to the limited licenses granted herein, TestReach acquires no right, title or interest from You under this Agreement in or to Your Data. You acknowledge that We, on Your behalf, are processing Your Data, which may contain Personal Data of Your Data Subjects in order to provide the Software Services and Professional Services. You are responsible as Data Controller of Your Data, and We are responsible as Data Processor. As such You will obtain all required User consents for Your Data (i) to be collected, stored and processed by Us as necessary to perform the Software Services and Professional Services and (ii) to be disclosed by Us pursuant to Compelled Disclosure set forth in Section 7.4, provided such disclosure shall not be deemed a breach of this Agreement. You alone will determine the purposes for and the manner in which Users’ Personal Data is Processed in performance of the Software Services and Professional Services. For avoidance of doubt such Processing includes all things necessary for the Parties to comply with this Agreement.

4. THIRD-PARTY PROVIDERS

4.1 Third-Party Components. Any acquisition by You of Third-Party Components, and any exchange of data between You and the Third-Party provider of such Third-Party Components is solely between You and the applicable third-party provider.

4.2 Third Party Components and Data. If You or Us, as directed by You, installs or enables a Third-Party Component for use with the Software Services, You grant Us permission to allow the third-party provider of that Third-Party Component to access Your Data as required for the interoperation of the Third-Party Component with the Software Services. We are not responsible for any disclosure, modification or deletion of Your Data resulting from such access to Your Data by a Third-Party provider.

4.3 Integration with Third Party Components. The Software Services may contain features designed to interoperate with Third-Party Components. To use such features, You may be required to obtain access to Third-Party Components from third-party providers, and You may be required to grant Us access to Your account(s) or Your User’s account(s) on the Third-Party Components. Further, the interoperability of Third-Party Components with the Software Services is contingent upon availability to Us of the Third-Party Component APIs and programs by the third-party provider, and suitably qualified third-party staff, contractors and documentation, as may be deemed necessary by US, to provide Us with information on the use and operation of such Third-Party Components. If the third-party provider ceases to make the API or Third-Party Components or programs available to Us on reasonable terms, We may cease providing the Software Services that interoperate with the Third-Party Components to You without entitling You to any refund, credit, or other compensation.

4.4 Notwithstanding anything to the contrary in this Agreement, We do not warrant or support, and shall not be liable for the Third-Party Components whether or not such Third-Party Components are produced by a third-party provider who has been designated as “certified” by TestReach. You are solely responsible for Your use of the Third-Party Components including any results based on Your use of the Third-Party Components.

5. FEES AND PAYMENT FOR PURCHASED SERVICES

5.1 Your Fees. As set forth in the applicable Order Form, Your access to the Purchased Services is subject to Your payment to Us of an applicable fee (as defined in the applicable Order Form) and any renewal fee when and if applicable.

5.2 Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in the Currency as specified on an executed Order Form, (ii) fees are based on Services purchased and not actual usage, (iii) payment obligations are non-cancellable, and fees paid are non-refundable, (iv) the duration and quantities of Purchased Software Services cannot be decreased during the relevant Subscription Term stated on the Order Form and (v) all Purchased Services are only valid during the Subscription Term specified on the Order Form. Once the Subscription Term ends, unused quantities shall be forfeited.

5.3 Invoicing and Payment. You will provide Us with a valid purchase order or any alternative document reasonably acceptable to Us that may be required for Us to invoice You, or You will provide Us with valid and updated credit card information. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the Subscription Term as set forth in Section 12.2 (Subscription Term of Purchased Services). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for giving Us complete and accurate billing and contact information. We reserve the right to use order and/or invoice financing from third parties.

5.4 Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 3% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.3 (Invoicing and Payment).

5.5 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.

5.6 Payment Disputes. We shall not exercise Our rights under Section 5.4 (Overdue Charges) or 5.5 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently with the Dispute Resolution procedures under Section 14 (Dispute Resolution).

5.7 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against or based on Our income, property and employees.

6. PROPRIETARY RIGHTS

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Further, You shall not divulge or disclose or permit any of Your employees or agents to divulge or disclose any Intellectual Property Rights in the Services except as expressly permitted in this Agreement.

6.2 Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Software Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, processes, functions or graphics of the Services, or (c) for the purposes of monitoring availability, performance or functionality or for any other benchmarking purposes.

6.3 Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the foregoing, you may, in an Order Form or separate agreement, license to Us the right to offer Exams that you create (which will contain Your Data) on Our Website.

6.4 Suggestions. We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You and Your Users, relating to the operation of the Services.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.3 Data Security. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so,, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.5 Data Access and / or Deletion Requests. In the event that We, as the Data Processor, receive a direct request from Your Users for access to their personal data or to delete their Personal Data, We will notify You, as the Data Controller, of that request in writing and will use reasonable endeavours to support You in dealing with the request.

8. DATA PROTECTION

8.1 Compliance with Legislation. Both Parties (You and Us) will comply with all applicable requirements of the Data Protection Legislation in the processing of Your Personal Data. This clause does not relieve, remove or replace a Party's obligations under the Data Protection Legislation. The Parties acknowledge that for the purposes of the Data Protection Legislation You are the Data Controller and We the Data Processor. Annex 1 to this Agreement sets out the scope, nature and purpose of the Processing, the duration of the Processing, the types of Personal Data and categories of Data Subject.

8.2 Limitation of Processing. We shall not Process any of Your Personal Data in connection with the performance of Our obligations under this Agreement other than on Your written instructions unless required by law in which case the We shall (to the extent permitted by law) inform You of that legal requirement before the relevant Processing.

8.3 Confidentiality of Personal Data. We shall ensure that all personnel who have access to and/or Process Your Personal Data are obliged to keep the Personal Data confidential.

8.4 Security of Personal Data. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage of Your Personal Data, We shall ensure that we have in place appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR and UK-GDPR.

8.5 Transfer of Personal Data. We shall not transfer any of Your Personal Data outside the European Economic Area unless: (i) Your prior written consent has been obtained; (ii) You or Us have provided appropriate safeguards in relation to the transfer; and (iii) We comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred.

8.6 Personal Data Breach. We shall: (i) notify You within 36 hours upon becoming aware of any Personal Data breach affecting Your Personal Data; and (ii) assist You in responding to any request from a Data Subject and in ensuring compliance with Your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators

8.7 Maintaining of Records. We shall maintain complete and accurate records and information to demonstrate Our compliance with this Section 8 (Data Protection) and the Data Protection Legislation. We shall allow You to review documentation, files and reports, directly relating to the Services provided by Us to You, as reasonably requested by You and supplied by Us in relation to the Processing of Your Personal Data. Such review will not include Our software, technology, systems or application.

8.8 Hosting and Third Party Services. You consent to Us using Amazon Web Services for application hosting services and to using any other third-party system or service as we may, at our sole discretion deem necessary, for Us to provide You with the Purchased Services. We shall provide you with a list of such third parties on request, that shall include details of the Processing to be undertaken by that third-party processor. With respect to each third-party processor, We shall enter with the third-party processor into a written agreement incorporating terms which offer at least the same level of protection for Your Personal Data as those set out in this Agreement and which meet the requirements of article 28(3) of the GDPR and UK-GDPR. As between You and Us, We shall remain fully liable for all acts or omissions of any third-party processor appointed by Us.

8.9 Retention of Personal Data. We shall, at Your written direction, and subject to the execution of an Order Form to cover any charges that may reasonably apply, delete some or all of Your Personal Data. Within 30 days of the termination of this Agreement, We shall delete all Your Personal Data and copies thereof. We shall, on Your request, such request being made by You in writing within 30 days of the termination of this Agreement, return Your Data as specified in Section 12.5 (Return of Your Data). We may retain Your Personal Data if required by law only to the extent and for such period as required by those laws.

9. WARRANTIES AND DISCLAIMERS

9.1 Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the Order Form, and (ii) the functionality of the Services shall not be materially decreased during a Subscription Term (except in the case of scheduled service stoppages for maintenance and the like). For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.

9.2 Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

9.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. MUTUAL INDEMNIFICATION

10.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable legal fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.

10.2 Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable legal fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.

10.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

11. LIMITATION OF LIABILITY

11.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF €5,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).

11.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. TERM AND TERMINATION

12.1 Term of Agreement. This Agreement commences on the date You Accept it and continues, subject to termination for cause below, until all subscriptions granted in accordance with this Agreement have expired or been terminated.

12.2 Subscription Term of Purchased Services. Unless stated otherwise on an Order Form, Services purchased by You commence on the Subscription Start Date specified in the applicable Order Form and continue until the Subscription End Date specified on the Order Form.

12.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if 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.

12.4 Refund or Payment upon Termination. Upon any termination for cause by You, provided the Subscription End Date has not been reached and the Order Form has not expired, We shall refund You prepaid fees for any unused quantities of Software Services. Upon any termination for cause by Us, You shall pay any unpaid fees covering all Order Forms before and after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

12.5 Return of Your Data. Upon request by You made within 30 days after the effective date of termination of Purchased Services, We will make available to You for download a file of Your Data. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

12.6 Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Data Protection), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Governing Law and Jurisdiction; Notice) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.

13. GOVERNING LAW AND JURISDICTION; NOTICE

13.1 Governing Law and Jurisdiction. This Agreement will be governed by the laws of the Republic of Ireland without regard to its principles of conflicts of law, which might require the application of the laws of any other jurisdiction. Jurisdiction and venue of any actions or proceedings to construe, interpret, enforce or to recover a remedy for the breach of this Agreement shall be Courts located in the Republic of Ireland.

13.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notices to Us shall be addressed to: TestReach, NexusUCD, Blocks 9/10, Belfield Office Park, Clonskeagh, Dublin 4, Ireland.

13.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14. DISPUTE RESOLUTION;

14.1 Subject to Section 14.4 below, Both Parties (You and Us) agree to seek to resolve informally any dispute arising under or relating to this Agreement, any Order Form or Services as follows. Either Party may refer a dispute for resolution by submitting to the other a written statement of the matter(s) referred for resolution. Within five (5) business days after receipt of the referring Party’s notice, managers responsible for the Services as to which the dispute relates but who are not directly involved in their day-to-day performance or management will meet in order to seek to resolve the dispute. If they are unable to resolve the matter(s) within ten (10) business days after receipt of such notice, either Party may refer the matter(s) for resolution by senior management upon written notice to the other.

Each Party will designate a senior manager or executive within five (5) business days and they will meet within ten (10) business days to seek to resolve the dispute (“Senior Representatives’ Meeting”). If they are unable to do so within fifteen (15) business days after receipt of the notice referring the matter(s) to them, the Parties shall, if Both Parties agree, refer the dispute to mediation in accordance with the rules of the Centre for Dispute Resolution (CEDR) or such other mediation provider agreed by the Parties. The Parties agree to hold such mediation as soon as possible and in any event within one (1) month of the Senior Representatives’ Meeting.

Notwithstanding the above, nothing in this Section 14.1 shall prevent or preclude either Party instating proceedings under Section 14.2. Any meetings may be held in person, by telephone or videoconference. Each informal dispute resolution process under this Section 14.1 will be limited to the matter(s) specified in the original notice under this paragraph.

14.2 The Parties will submit any dispute, controversy or claim arising out of or relating to the validity, formation, enforceability, performance, breach or termination of this Agreement to the exclusive jurisdiction of the Republic of Ireland courts and the Parties hereby submit to, and waive any objection to, personal jurisdiction and venue in such courts for such purpose.

14.3 We acknowledge and agree that the timely and complete performance of the Services and its obligations under to this Agreement are critical to Your business and operations. Accordingly, in the event of a dispute between the Parties We agree to continue to provide the Services and perform Our other obligations under this Agreement during the resolution of such dispute up to a maximum of 30 business days after receipt of the referring Party’s statement of the matters, unless and until this Agreement is terminated (either in full or with respect to the Services in dispute) in accordance with its terms and conditions.

14.4 Either Party may apply at any time to a court of competent jurisdiction for interim or conservatory measures or to protect a superior position vis-à-vis other creditors.

15. CONFLICTS OF INTEREST

15.1 We shall follow Our Conflict of Interest Policy & Procedure when dealing with Conflicts of Interest.

15.2 We shall take all appropriate steps to identify and to prevent or manage Conflicts of Interest between, (i) You and Us (including Our managers, employees and appointed representatives, or any person directly or indirectly linked to them); and (ii) You and any other of Our clients that arise, or may arise, in the course of Us providing Services to You. This includes any conflicts of interest caused by the receipt of inducements from third parties or by Our own remuneration and other incentive structures.

15.3 We shall notify You if this Agreement or any aspect related to the Services We provide under this Agreement raises a Conflict of Interest and We shall provide You with details.

15.4 In the unlikely event that We cannot resolve the Conflict of Interest We shall discuss and agree reasonable measures with You to (i) address the Conflict of Interest and (ii) mitigate the risk of such Conflicts of Interest arising into the future.

16. GENERAL PROVISIONS

16.1 Export Compliance. Each party shall comply with the export laws and regulations of Ireland and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any Irish government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any Irish export embargo, prohibition or restriction.

16.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

16.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

16.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

16.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

16.6 Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).

16.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering unused Software Services for all Subscription Terms that extend past the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

16.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

16.9 Publicity. You hereby grant Us the right to display in Our marketing and advertising materials (including without limitation, web sites, product literature, newsletters, blogs, and press releases) that You are a client of Ours.

16.10 We reserve the right, at any time, to modify the terms of this Agreement without prior notice. We recommend that you check this Agreement periodically to see if there have been any modifications. Modifications will become effective immediately upon being posted on the Website. Your continued use of the Services after modifications are posted will be considered an acceptance of the modified Agreement.

Annex 1

This Annex 1 includes certain details of the Processing of Your Personal Data as required by Article 28(3) GDPR and UK-GDPR.

Subject matter and duration of the Processing of Your Personal Data	As set out in the Agreement
Nature and purpose of the Processing of Your Personal Data	TestReach (Data Processor) provides assessment services to You (Data Controller). These services enable You to set up, roll out, mark, moderate and issue results for tests and assessments. You own all data relating to the above activity, and We only store and Process any such Personal Data according to the instructions and for the purposes specified by You.
Type(s) of Personal Data to be Processed	Depending on the type of exam being taken, different information will be collected / stored, including: Exam Candidate Personal Information – this information is used to identify the candidate, to ensure they take the correct exam and to ensure their specific exam requirements are met May include: Name, email address, phone, demographic information, company, group or department, course of study, special adjustments for the exam (for example additional time allowed). Computer Information – this information is used to maintain the integrity of the test, to investigate and resolve any issues that may arise and to help TestReach improve the service offered May include: IP address, browser header data (user agent), processes running, RAM & CPU usage statistics, installed drivers, peripherals connected and also cookies are used. Candidate Exam Information – this information is recorded and used as part of the assessment process, is also used for exam security and integrity purposes and to help TestReach improve the service offered. May include: Responses given, score, results data, access and activity data, video of candidate taking the exam (for remotely invigilated exams only)
Categories of Data Subject to whom the Personal Data relates	Candidates taking assessments.
Your Obligations and rights	As set out in the Agreement

MSA

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