Testkube Service and Subscription Agreement

TABLE OF CONTENTS

1. PURPOSE

2. DEFINITIONS

3. SCOPE OF AGREEMENT AND MODIFICATIONS

4. ACCESS, LICENSING, AND USE RIGHTS

5. INTELLECTUAL PROPERTY RIGHTS

6. FEES, PAYMENT, AND USAGE COMPLIANCE

7. TERM AND TERMINATION

8. SERVICE LEVEL AGREEMENT AND AVAILABILITY

9. MAINTENANCE AND UPDATES

10. CONFIDENTIALITY

11. INDEMNIFICATION

12. LIMITATIONS OF LIABILITY

13. SECURITY AND DATA PROTECTION

14. INSURANCE

15. DISPUTE RESOLUTION

16. REPRESENTATIONS AND WARRANTIES

17. LANGUAGE

18. ELECTRONIC COMMUNICATIONS AND TRANSACTIONS

19. MISCELLANEOUS

SCHEDULE A

SCHEDULE B

SUBSCRIPTION AND SERVICE AGREEMENT

This Testkube Subscription and Service Agreement (the "Agreement") is entered into by and between Testkube Inc., a Delaware corporation doing business as "Testkube" ("Testkube" or the "Company"), and the Customer referenced in the Order Form (the "Customer"), and is dated and effective as of the date of the Customer's electronic signature on the Order Form (the "Effective Date"). Subject to the terms of this Agreement, Customer wishes to subscribe for access to Testkube's Products and Services as defined below.

1. Purpose

This Agreement sets forth the terms of the commercial relationship between Testkube and Customer pursuant to which Testkube shall provide access to the Products and Services in exchange for Customer making payments to Testkube.

2. Definitions

"Acceptable Commercial Uses" shall mean the use of Testkube as a test orchestration and execution framework for Kubernetes environments, enabling Customer to manage, deploy, and execute tests. This includes, but is not limited to, the development, quality assurance, and performance monitoring of software applications within Kubernetes including, without limitation, the use of AI Features for AI-assisted test authoring, AI Agent-driven test creation and execution, and related AI-powered functionality, in each case subject to Section 4.3..

"Business Hours" shall mean Monday through Friday, 9:00 AM to 6:00 PM Eastern Standard Time, excluding public holidays recognized in the United States.

"Control Plane" shall mean the centralized management and coordination component of Testkube that orchestrates test execution, manages workflows, and provides the user interface and API endpoints. For purposes of license metering and Usage Metrics, the Control Plane is the single unit of measurement across which all Licensed Metrics are counted, regardless of how many Organizations exist within that Control Plane.

"Testkube-Hosted Control Plane" shall mean the Control Plane hosted and managed by Testkube in Testkube's cloud infrastructure.

"Customer-Hosted Control Plane" shall mean the Control Plane deployed and managed by Customer in Customer's own infrastructure, including air-gapped or network-isolated deployments.

"Contributions" shall mean any data, code, tests, configurations, and other materials uploaded, entered, or otherwise submitted by Customer to Testkube for Acceptable Commercial Uses.

"Licensed Agents" shall mean the number of Agents (i.e., test execution agents connected to and managed by the Control Plane) licensed to Customer under the applicable Order Form, as specified in Schedule A. Licensed Agents are counted in aggregate across all Organizations within a single Control Plane. An Agent that is connected to one Control Plane and assigned to any Organization within that Control Plane counts as one (1) Licensed Agent toward the total licensed quantity, regardless of which Organization it is assigned to.

"Licensed Users" shall mean the number of Users (i.e., named individuals authorized to access and use the Control Plane) licensed to Customer under the applicable Order Form, as specified in Schedule A. Licensed Users are counted in aggregate across all Organizations within a single Control Plane. A User who is a member of one or more Organizations within the same Control Plane counts as one (1) Licensed User toward the total licensed quantity.

"Organization" shall mean a logical grouping or workspace within a Control Plane that Customer may use to organize Agents, Users, workflows, and test resources. A single Control Plane may contain one or more Organizations. The existence of multiple Organizations within a Control Plane does not multiply or otherwise affect the count of Licensed Agents or Licensed Users; all such metrics are measured at the Control Plane level in aggregate.

"Force Majeure Event" shall mean any events or circumstances beyond the reasonable control of a Party, including but not limited to acts of God, natural disasters, wars, civil disturbances, acts of terrorism, strikes or labor disputes, government actions, pandemics, interruptions or failures of the internet or a public utility service, and any other events that could not have been avoided or overcome with reasonable diligence.

"Order Form" shall mean the Hubspot order form, electronically signed by Customer, which delineates the Products and Services subscribed to by Customer, attached to this Agreement as Schedule A.

"Products" shall mean the software, source code, and associated documentation developed by Testkube, including test orchestration and execution frameworks for Kubernetes environments.

"Services" shall mean the professional support, integration, assistance, and maintenance related to the Products.

"Usage Metrics" shall mean those components or features of the Products and Services for which pricing is calculated based upon usage as outlined in Schedule A and at https://testkube.io/pricing, including without limitation Licensed Agents and Licensed Users.

3. Scope of Agreement and Modifications

This Agreement, including the attached Schedules, constitutes a standalone contract, distinct and separate from any other terms and conditions previously or currently agreed upon by or between the Parties. This Agreement supersedes any prior understandings, agreements, or representations, written or oral, related to its subject matter. No other agreement, including any other Testkube Terms and Conditions related to the Products and Services provided by Testkube, shall affect the terms of this Agreement unless expressly incorporated herein.

Any modifications, amendments, or updates to this Agreement must be made in writing and signed by duly authorized representatives of both Parties. No change, modification, or waiver of any provision of this Agreement shall be valid or binding unless agreed upon in writing and acknowledged by both Parties.

4. Access, Licensing, and Use Rights

Customer shall access the Products and Services according to the access interfaces specified in the Order Form attached as Schedule A. Customer may choose to utilize either a Testkube-Hosted Control Plane or Customer-Hosted Control Plane, and may switch between these options during the Term upon written notice to Testkube. Customer acknowledges that the Products and Services may contain open-source components, and Customer agrees to comply with the terms of the open-source licenses governing those components. Customer also agrees not to remove any copyright, license, or attribution notices from the Products and Services.

During the Term (as defined below), Customer is granted a revocable, limited license to access and use the Products and Services solely for the Acceptable Commercial Uses outlined in and pursuant to the terms of this Agreement.

4.1 Control Plane-Level Licensing

All Usage Metrics—including Licensed Agents and Licensed Users—are licensed, measured, and enforced at the Control Plane level, aggregated across all Organizations within that Control Plane. For the avoidance of doubt:

• If Customer is licensed for a given number of Agents and Users under Schedule A, Customer may deploy up to that number of Agents and designate up to that number of Users in total, distributed across any number of Organizations within the Control Plane, without restriction as to how many are assigned to each individual Organization.
• The creation or addition of Organizations within a Control Plane does not increase the licensed quantity of Agents or Users. Each Organization draws from the same Control Plane-level licensed pool.
• A User who is a member of multiple Organizations within the same Control Plane shall be counted only once toward the Licensed User count.
• An Agent connected to a Control Plane shall be counted only once toward the Licensed Agent count, regardless of which Organization it is assigned to.
• Deploying one or more additional Control Planes—whether Testkube-Hosted or Customer-Hosted—requires a separate Order Form and separate license entitlements for each such Control Plane.

Customer is responsible for ensuring that actual usage does not exceed the licensed quantities of Licensed Agents and Licensed Users at any time during the Term. Customer shall promptly notify Testkube in writing if Customer reasonably anticipates exceeding its licensed quantities, and the Parties shall negotiate in good faith a mutually agreeable expansion to the Order Form.

Authorized Users. "Authorized Users" means (a) Customer's and Customer's Affiliates' employees, and (b) any independent contractors, consultants, system integrators, resellers, or other third parties authorized by Customer to access and use the Products and Services on Customer's behalf. Each Authorized User shall be designated as a Licensed User and shall count as one (1) Licensed User toward Customer's Licensed User entitlement set forth in the Order Form. A single individual who is an Authorized User of multiple Organizations within the same Control Plane shall be counted only once. Customer shall ensure that each Authorized User complies with the terms of this Agreement and shall be responsible for the acts and omissions of its Authorized Users in connection with the Products and Services as if such acts or omissions were Customer's own. Customer's indemnification obligations under Section 11 shall extend to claims arising from any Authorized User's breach of this Agreement, violation of applicable law, or infringement of third party rights.

4.2 Third Party Integrations

Customer may integrate third party solutions to be used alongside the Products and Services solely for the purposes of enhancing testing capabilities pursuant to the Acceptable Commercial Uses outlined in this Agreement (the "Customer Third Party Solutions"), provided that such integrations must not: (i) involve modifications to the Testkube source code, (ii) infringe upon any Testkube intellectual property rights (as defined below) or third party intellectual property rights, (iii) violate any applicable laws, or (iv) interfere with Testkube's functionality or security. Customer is responsible for ensuring that any Customer Third Party Solutions used in conjunction with the Products comply with the terms of this Agreement and do not adversely affect the Products' functionality or other Testkube users. In the event that the Customer Third Party Solutions violate any of the above terms or otherwise disrupt, alter, modify, or impact the Products, Services, or other Testkube users, Customer shall indemnify and hold Testkube harmless from any claims, damages, expenses, or legal fees arising from the impacts of the Customer Third Party Solutions pursuant to Section 11 herein.

4.3 (AI Features) 

(a) Definitions. "AI Features" means any features, functionality, or components of the Products and Services that use machine learning, generative AI, large language models, or similar techniques, including without limitation AI-assisted Test Authoring, AI Agents, and any successor or related capabilities. "AI Output" means any data, text, code, test workflows, configurations, suggestions, recommendations, or other content generated, produced, or returned by the AI Features. "AI Agent" means any AI-driven component that takes autonomous or semi-autonomous actions within Customer's environment, including without limitation generating, executing, modifying, or scheduling tests or related operations.

(b) AI Output Provided "AS IS". AI OUTPUT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CUSTOMER ACKNOWLEDGES THAT AI FEATURES ARE PROBABILISTIC, EVOLVING, AND MAY PRODUCE OUTPUT THAT IS INACCURATE, INCOMPLETE, BIASED, NON-DETERMINISTIC, OR OTHERWISE UNEXPECTED, INCLUDING WITHOUT LIMITATION TESTS THAT FAIL TO DETECT DEFECTS, TESTS THAT PRODUCE FALSE POSITIVES OR FALSE NEGATIVES, CODE THAT CONTAINS ERRORS OR SECURITY VULNERABILITIES, OR ACTIONS THAT DO NOT ACHIEVE CUSTOMER'S INTENDED RESULT. TESTKUBE DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO AI OUTPUT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, AND ORIGINALITY.

(c) Customer Responsibility for Review and Verification. Customer is solely responsible for reviewing, evaluating, testing, and validating all AI Output before relying on, deploying, executing, or otherwise using such AI Output. Customer shall not rely on AI Output as the sole basis for any decision, deployment, or action that could materially impact Customer's production systems, infrastructure, security posture, regulatory compliance, or end users. Customer is responsible for implementing appropriate human review, approval workflows, and verification processes proportionate to the risk associated with the AI Output and the environment in which it will be used.

(d) AI Agent Authorization, Customer Controls, and Audit Logs. Customer expressly authorizes Testkube and its AI Agents to take actions within Customer's environment to the extent of the permissions, credentials, scopes, and configurations Customer grants to the AI Agent. Customer is solely responsible for: (i) defining the scope of access granted to AI Agents, including environment isolation, role-based access control, network policies, and resource limits; (ii) determining which environments (development, staging, production) AI Agents may operate within; (iii) implementing approval gates, dry-run modes, or human-in-the-loop controls where appropriate; and (iv) monitoring and auditing AI Agent activity. Testkube shall provide Customer with audit logs of AI Agent actions taken within Customer's environment, retained for the period specified in Schedule A or, if not specified, for ninety (90) days. Customer is responsible for exporting or preserving such logs beyond the retention period. Testkube shall have no liability for actions taken by AI Agents within the scope of permissions and configurations granted by Customer, or for any consequences arising from inadequate scoping, controls, or oversight by Customer.

(e) Prohibited Uses of AI Features. Customer shall not use AI Features for any safety-critical, life-sustaining, or high-risk application, or in any manner where errors in AI Output could foreseeably result in personal injury, death, environmental damage, or material financial loss, in each case without independent human verification. Customer shall not use AI Features to generate content that is unlawful, infringing, or violates the rights of any third party. Customer shall not (and shall not permit any third party to) use AI Features or AI Output to: (i) train, fine-tune, or develop any AI model that competes with the Products or Services; (ii) reverse engineer, extract, or derive the weights, parameters, training data, or architecture of any AI model used in the AI Features; or (iii) circumvent any technical or contractual usage limits.

(f) Customer Contributions and Training Data. Testkube shall not use Customer's Contributions to train, retrain, or fine-tune any AI model that is shared across Testkube's customer base, except: (i) with Customer's prior written consent; (ii) on a per-tenant basis where the resulting model is used solely for Customer's benefit; or (iii) using anonymized, aggregated, de-identified data from which Customer cannot reasonably be identified, for purposes of improving the Products and Services. Customer retains ownership of its Contributions and the AI Output generated from its Contributions, subject to the licenses granted in this Agreement.

(g) Third-Party AI Components. AI Features may incorporate or rely on third-party foundation models or AI services. Customer acknowledges that the availability, performance, output, and terms of such third-party components may change over time and may affect the AI Features. Testkube shall use commercially reasonable efforts to minimize disruption resulting from changes to underlying third-party AI components.

(h) License to AI Output. Subject to Customer's compliance with this Agreement, Testkube grants Customer a worldwide, perpetual, non-exclusive, royalty-free, sublicensable license to use, reproduce, modify, distribute, and create derivative works of the AI Output for any lawful purpose. To the extent any rights in AI Output vest in Testkube by operation of law, Testkube hereby assigns such rights to Customer. Testkube makes no representation that AI Output is unique to Customer; identical or substantially similar AI Output may be generated for other customers.

5. Intellectual Property Rights

The Product and Services are the proprietary property of Testkube unless otherwise indicated, and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on or in the Products and Services (collectively, the "Content") and the trademarks, service marks, and logos contained therein (the "Marks") are owned or controlled by Testkube or licensed to Testkube, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. Except as expressly provided for in this Agreement, no part of the Products, Services, Content, or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose, other than the Acceptable Commercial Uses specifically outlined in this Agreement, without the express prior written permission of Testkube. Testkube reserves all rights not expressly granted to Customer in and to the Products, Services, Content, and Marks.

Testkube represents and warrants that the Products, Services, Content, and Marks are original and do not infringe on any third party's intellectual property rights. In the event of a breach of this warranty, Testkube agrees to indemnify and hold Customer harmless from any claims, damages, expenses, or legal fees arising from allegations of infringement against the Products, Services, Content, or Marks pursuant to Section 11.3 herein.

Contributions. Ownership of and all intellectual property rights associated with the Contributions, including any elements tested through the platform and any resultant test outcomes, shall be retained by Customer. Testkube acknowledges that it has no ownership claims over such Contributions or the results generated therefrom, except as expressly provided in this Agreement. Customer represents and warrants that the Contributions are original and do not infringe on any third party's intellectual property rights. In the event of a breach of this warranty, Customer agrees to indemnify and hold Testkube harmless from any claims, damages, expenses, or legal fees arising from allegations of infringement against the Contributions pursuant to Section 11 herein. For the avoidance of doubt, Testkube's representations and warranties regarding originality and non-infringement of the Products, Services, Content, and Marks do not extend to AI Output, which is governed exclusively by Section 4.3.

6. Fees, Payment, and Usage Compliance

Customer will pay Testkube the corresponding amount specified in Schedule A to access and use the Testkube Products and Services outlined in Schedule A. Customer agrees to provide current, complete, and accurate purchase and account information for all purchases made to access the Products and Services, and to promptly update account and payment information, including email address, payment method, and payment card expiration date, should any such information change.

Customer may pay Testkube via the following payment methods:

• Via Stripe, which will store all payment and other sensitive data related to Customer's purchase; or
• Via ACH, pursuant to banking details provided in writing by Testkube to Customer.

Sales tax and other taxes and fees will be added to the price of purchases as deemed required by Testkube. All payments will be charged in United States dollars.

Testkube reserves the right to correct any errors or mistakes in its pricing based upon the incorrect calculation of any Usage Metrics specified in Schedule A, even if Testkube has already requested or received payment. In the event of such pricing revisions, Testkube shall notify Customer in writing at least five (5) days prior to such revised pricing amounts being due and payable by Customer to Testkube.

6.1 Usage Reporting and Audit Rights

Testkube prices its Products and Services based on Usage Metrics, including Licensed Agents and Licensed Users, each measured in aggregate at the Control Plane level. Depending on Customer's deployment type, usage is verified as follows:

6.1.1 Self-Reporting Obligations

For Customer-Hosted Control Plane and air-gapped deployments, Customer shall, within thirty (30) days following each anniversary of the Effective Date, deliver to Testkube a written self-certification report (the "Usage Report") setting forth: (a) the number of Agents connected to the Control Plane during the preceding twelve (12) month period; (b) the number of distinct Users with access to the Control Plane during the preceding twelve (12) month period; (c) the number of Organizations configured within the Control Plane; and (d) any other Usage Metrics specified in Schedule A. The Usage Report shall be signed by a duly authorized representative of Customer and shall certify that the information provided is accurate and complete to the best of Customer's knowledge.

6.1.2 Testkube Audit Rights

Testkube shall have the right, no more than once per calendar year and upon at least thirty (30) days' prior written notice, to audit Customer's deployment of the Products and Services to verify compliance with the Usage Metrics and licensing obligations set forth in this Agreement (a "Compliance Audit"). Testkube may conduct a Compliance Audit by any or all of the following methods, in its reasonable discretion:

• Requesting that Customer provide a written self-certification report or supporting documentation, including configuration files, deployment manifests, access logs, or user account records, as reasonably necessary to verify usage (a "Documentary Audit");
• Requesting remote read-only access to non-sensitive system configuration data for the Control Plane, subject to reasonable security protocols established by Customer (a "Remote Technical Audit"); or
• For air-gapped or otherwise disconnected deployments, designating a mutually agreed independent third-party auditor to conduct an on-site or remote technical review, at Testkube's expense, subject to Customer's reasonable security and confidentiality requirements (a "Third-Party Audit").

Customer shall cooperate with any Compliance Audit in good faith and shall provide Testkube or the designated third-party auditor with reasonable access to relevant records, personnel, and systems within the scope of the audit. Testkube shall conduct any Compliance Audit in a manner that minimizes disruption to Customer's operations and shall treat all information obtained during the audit as Confidential Information in accordance with Section 10.

6.1.3 Audit Findings and Remedies

If a Compliance Audit reveals that Customer has exceeded its licensed Usage Metrics, Customer shall pay to Testkube, within thirty (30) days of written notice of the audit findings: (a) the applicable fees for the excess usage, calculated at the then-current list prices set forth at https://testkube.io/pricing for the period of non-compliance; and (b) if the excess usage exceeds five percent (5%) of the licensed quantities, a true-up fee equal to one hundred and five percent (105%) of the applicable fees for such excess usage, in lieu of the standard rate, to account for the administrative costs of the audit. If the audit reveals that Customer is in compliance, Testkube shall bear the reasonable costs of the audit. The Parties agree that the audit right set forth in this Section 6.1 is Testkube's primary remedy for underpayment due to inaccurate usage reporting, and Testkube shall not seek other monetary remedies for such underpayment provided that Customer cooperates in good faith with the audit process and promptly pays any amounts due upon written notification of audit findings.

7. Term and Termination

This Agreement shall remain in full force and effect for a period of one year (365 days) from the Effective Date (the "Initial Term"), unless otherwise terminated in accordance with the terms of this Agreement. Notwithstanding anything contained herein to the contrary, this Agreement may be terminated:

• By either Party for cause by written notice, without opportunity to cure, in the event that:
  
  • The other Party fails to function as a going concern;
  • A receiver, trustee, or other custodian for the other Party or its assets is appointed, applied for, or consented to;
  • The other Party becomes insolvent or unable to pay its debts as they mature in the ordinary course;
  • The other Party makes an assignment for the benefit of creditors;
  • The other Party is liquidated or dissolved; or
  • Any proceedings are commenced by or against the other Party under any bankruptcy, insolvency, or debtor's relief law and not dismissed within 60 days.
• By either Party if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice thereof.
  
  

Upon termination of this Agreement, Testkube will delete all existing copies of data collected from Customer or related to Customer or its use of the Products and Services within 30 days of termination, and will deliver a deletion certificate to Customer as proof of such deletion upon request by Customer. Upon termination of this Agreement, Customer will delete any data and downloaded version(s) of the Products within 14 days of termination, and will deliver a deletion certificate to Testkube as proof of such deletion upon request by Testkube.

7.1 Automatic Renewal

Unless earlier terminated in accordance with this Agreement, the Term shall automatically renew for successive periods of one year each (each a "Renewal Term," and together with the Initial Term, the "Term") at the then-current pricing set forth in Testkube's then-current pricing schedule at https://testkube.io/pricing, unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term (a "Non-Renewal Notice"). Automatic renewal will be for the same product configuration and licensed quantities then in effect, subject to the commercial availability provisions of Section 7.2.

Testkube shall send Customer a written renewal reminder no later than sixty (60) days before the end of the then-current Term. The renewal reminder shall specify: (a) the upcoming automatic renewal date; (b) the pricing applicable to the Renewal Term; and (c) the deadline and process for submitting a Non-Renewal Notice. If Customer does not deliver a Non-Renewal Notice on or before the deadline specified in the renewal reminder, this Agreement will automatically renew and Customer will be invoiced for the applicable Renewal Term fees.

7.2 Customer's Right to Renew

Customer shall have the right, exercisable by written notice to Testkube no later than thirty (30) days prior to the end of the then-current Term, to renew this Agreement for the same products, features, and configuration set forth in the Order Form as of the date of such notice (the "Baseline Configuration"), provided that such Baseline Configuration remains commercially available as of the date of renewal. For purposes of this Section 7.2, a product, feature, or configuration shall be deemed "commercially available" if Testkube continues to offer it to customers generally, or offers a functionally equivalent successor product or configuration.

If all or any material part of the Baseline Configuration is no longer commercially available at the time of renewal, Testkube shall: (a) notify Customer in writing no later than sixty (60) days before the end of the then-current Term; (b) identify the closest available replacement configuration; and (c) negotiate in good faith with Customer on pricing and terms for a mutually acceptable renewal configuration. Nothing in this Section 7.2 shall limit Testkube's right to adjust pricing for Renewal Terms, subject to Testkube providing adequate prior written notice as specified in Section 7.1.

7.3 Non-Renewal and Expiration

If either Party delivers a valid Non-Renewal Notice pursuant to Section 7.1, this Agreement shall expire at the end of the then-current Term. Upon expiration, the data deletion obligations set forth in this Section 7 shall apply. The delivery of a Non-Renewal Notice shall not constitute a termination for cause or a material breach of this Agreement.

8. Service Level Agreement and Availability

8.1 General Service Availability

Testkube agrees to use commercially reasonable efforts to ensure the availability and performance of the Products and Services.

8.2 Testkube-Hosted Control Plane Terms

In the case where Testkube hosts the Control Plane for Customer, the following terms apply:

8.2.1 Uptime Commitment. Testkube guarantees that the Testkube-Hosted Control Plane will be available [99.0%] of the time in any given month, excluding scheduled maintenance periods.

8.2.2 Exceptions. Downtime caused by factors outside of Testkube's reasonable control, including natural disasters, wars, internet service provider failures, or other Force Majeure Events, will not be counted against Testkube's uptime commitment. In the case of such Force Majeure Event, Testkube shall promptly provide written notice to Customer including an estimate of the duration of the expected impact. Downtime or degraded performance of AI Features arising from outages, rate-limiting, throttling, model changes, or service disruptions of third-party AI or foundation model providers shall not count against Testkube's uptime commitments.

8.3 Customer-Hosted Control Plane

For Customer-Hosted Control Plane deployments, Testkube makes no uptime guarantees or availability commitments for infrastructure-related issues, as the Control Plane infrastructure is under Customer's control and management. However, Testkube will provide Support Services for software-related issues affecting the Customer-Hosted Control Plane according to the response times specified in Schedule B.

8.4 Support Services

Testkube agrees to respond to Customer's support inquiries and provide resources to ameliorate any issues which Customer may encounter with the Products and Services (together, the "Support Services"). Testkube may assist with:

• Deployment and Configuration: Testkube may guide Customer through the setup and configuration of the Testkube control plane and its agents in Customer's Kubernetes environment.
• Testkube Native Features: Testkube may assist Customer to effectively use Testkube's features, including but not limited to advising on Test Workflow definitions, optimizing test workflows using services or parallelism, and structuring workflows for complex scenarios such as end-to-end multi-tool orchestration.
• Integrations: Testkube may provide support for interactions between Testkube and third-party products supported by Testkube, including APIs, webhooks, plugins, and other integration points.
• Bug Triaging: If Customer suspects a bug within the Testkube control plane or its direct functionalities, Testkube will investigate and triage such issues.

The following services are expressly excluded from the scope of Testkube support:

• Building and Writing Tests: Testkube shall not build or write Customer's actual test scripts, including but not limited to creating JMeter, Cypress, or Postman tests from scratch.
• Debugging Failed Tests: While Testkube may assist in determining whether a Testkube issue is causing a test to fail, Testkube shall not debug the underlying test code itself.
• Kubernetes Environment Management: Testkube shall not perform hands-on configuration of Customer's cluster to handle specific testing scenarios, including but not limited to deploying and configuring node pools to support testing demand.
• Implementation Services: Testkube shall not implement test workflows on Customer's behalf.

8.5 Response and Resolution Times

Testkube agrees to provide the Support Services and alert Customer regarding any issues which may impact Customer's ability to access the Products and Services within the timeframes specified in the attached Schedule B so that Customer may obtain assistance in an effective and timely manner. Testkube shall classify all issues with the Products and Services as one of the classification levels specified in Schedule B according to commercially reasonable standards, and shall use commercially reasonable efforts to provide Support Services within the timeframes specified for the applicable classification in Schedule B during Business Hours. These support timelines and classifications apply to both Testkube-Hosted and Customer-Hosted Control Plane deployments for software-related issues.

8.6 Customer Responsibilities

Customer must comply with certain commercially reasonable requests from Testkube in order to receive Support Services in an effective and timely manner.

• Access and Cooperation. To receive Support Services, Customer must provide to Testkube within a reasonable timeframe following Testkube's request such access to Customer's computer hardware, software, networks, and systems as may be reasonably required by Testkube to enable Testkube to provide Support Services. Customer must also use commercially reasonable best efforts to cooperate with Testkube in a timely manner regarding the Support Services.
• Licenses. Customer must also provide any governmental, legal, regulatory licenses, consents, permits, or intellectual property licenses upon Testkube's request to the extent Testkube determines on a reasonable basis that such information is necessary to effectively provide Support Services.

9. Maintenance and Updates

Maintenance Protocols. Testkube may from time to time perform maintenance on the Products and Services in order to improve and enhance Customer's use of the Products and Services.

Scheduled Maintenance. Testkube will conduct maintenance activities during non-Business Hours to minimize disruptions to the Products and Services. Testkube will provide written notification of such scheduled maintenance to Customer at least 48 hours in advance of the earliest disruption to the Products and Services associated with the scheduled maintenance.

Emergency Maintenance. In rare cases where core functionality or integrity of the Products and Services is impacted, emergency maintenance may be necessary. In such events, Testkube will provide as much notice as possible to Customer and will use commercially reasonable efforts to minimize disruptions to the Products and Services.

Updates for New Features. Testkube may from time to time push or provide updates to the Products and Services which are not maintenance related in order to improve and enhance the Products and Services. Testkube will make freely available to Customer such updates narrowly related to preserving the functionality of the Products and Services specified in Schedule A as such functionality existed at the Effective Date. Notwithstanding anything contained herein to the contrary, Testkube reserves the right to revise the pricing available at https://testkube.io/pricing for updated versions of the Products and Services pursuant to any non-maintenance related updates, though such revised pricing shall not modify this Agreement and shall not modify the pricing for the functionality detailed in Schedule A unless otherwise agreed to in writing by the Parties.

10. Confidentiality

Both Parties agree to maintain the confidentiality of Confidential Information (as defined below) received from the other Party or directly accessed or deduced therefrom during the term of this Agreement and for a period of two years following its termination. Confidential Information shall mean each Party's software, source code, technical processes, schematics, formulas, product designs, sales, cost data, financial information, business strategies, customer lists, personal information of employees, and any other materials which the Parties designate as "Confidential" or "Proprietary" in writing. Each Party shall use the same degree of care to protect the confidentiality of the other Party's Confidential Information as it uses to protect its own similar information, but in no event less than reasonable care. This clause shall not apply to information that (i) is or becomes publicly known for reasons not connected with the breach of this Agreement, (ii) is lawfully acquired from a third party without breach of this Agreement, or (iii) is required to be disclosed by a valid judgement, regulation, law, or request by a competent court or government body. In case of (iii), the recipient of Confidential Information shall provide the other Party with a reasonable opportunity to review the disclosure and to restrict the disclosure of the relevant Confidential Information to the maximum amount possible while still complying with the relevant order.

11. Indemnification

Testkube will defend, indemnify and hold Customer harmless against any third party claims, liabilities or expenses incurred (including reasonable attorneys' fees), as well as amounts finally awarded in a settlement or a non-appealable judgement by a court (together, the "Losses"), to the extent arising from any claim or allegation by a third party that the Products or Services infringe or misappropriate a valid United States patent, copyright, or trade secret right of a third party; provided that Customer gives Testkube: (i) prompt written notice of any such claim or allegation; (ii) sole control of the defense and settlement thereof; and (iii) reasonable cooperation and assistance in such defense or settlement. If any component or feature of the Products or Services becomes, or in Testkube's opinion is likely to become, the subject of an injunction, Testkube may, at its option, (A) procure for Customer the right to continue using such component or feature, (B) replace or modify such component or feature so that it becomes non-infringing without substantially compromising its functionality, or, if (A) and (B) are not commercially practicable, then (C) terminate Customer's license and access to the allegedly infringing component or feature and refund to Customer a prorated portion of the fees for such infringing component or feature as outlined in Schedule A. The foregoing comprises the entire liability of Testkube with respect to infringement of patents, copyrights, trade secrets, or other intellectual property rights. Notwithstanding the foregoing, Testkube's indemnification obligations under this Section 11 shall not apply to claims that AI Output infringes third-party intellectual property rights, except to the extent such claims arise from Testkube's training of proprietary models on materials that Testkube knew or should have known infringed third-party rights. Customer's exclusive remedy for any other AI Output infringement claim is set forth in Section 4.3. Testkube's indemnification obligations also shall not apply to: (i) any modification of the Products or Services not made by Testkube; or (ii) any combination of the Products or Services with Customer Third Party Solutions, Contributions, or other materials not provided by Testkube.

Customer agrees to defend, indemnify, and hold Testkube harmless, including Testkube's subsidiaries, affiliates, and all of Testkube's respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any third party due to or arising out of:

• Customer's breach of this Agreement;
• Any breach by Customer of Customer's representations and warranties set forth in this Agreement;
• Customer's violation of the rights of a third party, including but not limited to intellectual property rights related to the Contributions or the Customer Third Party Solutions; or
• Any overtly harmful act toward any other user of the Products or Services with whom Customer connected via the Products or Services.
• Customer's use, deployment, execution, or reliance on AI Output, including without limitation any claim that AI Output caused damage to Customer's or any third party's systems, data, or operations, or that Customer's use of AI Output infringed any third-party right.

Customer shall have the right, at Customer's expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Testkube, and Testkube agrees to cooperate, at Customer's expense, with Customer's defense of such claims. Testkube will use reasonable efforts to notify Customer of any such claim, action, or proceeding which is subject to the indemnification described above upon becoming aware of it.

12. Limitations of Liability

BOTH PARTIES AGREE THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, EACH PARTY, INCLUDING ITS DIRECTORS, EMPLOYEES, OR AGENTS, SHALL NOT BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF DATA, BUSINESS INTERRUPTIONS, FAILURES OF DELIVERY, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY IN CASE OF EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, PROHIBITED ACTIVITIES AS DEFINED IN THIS AGREEMENT, ANY INTENTIONAL BREACH, GROSS NEGLIGENCE, OR IN CASE OF BODILY INJURY OR DEATH.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND EXCLUDING DAMAGES INCURRED DUE TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER, REGARDLESS OF THE FORM OF THE ACTION OR AS OTHERWISE PROVIDED IN THIS AGREEMENT, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT DUE TO BE PAID BY CUSTOMER TO TESTKUBE DURING THE TERM OF THIS AGREEMENT.

CERTAIN UNITED STATES STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A PARTY, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY, AND THE PARTY MAY HAVE ADDITIONAL RIGHTS.

WITHOUT LIMITING THE FOREGOING, ANY DAMAGES, LOSSES, OR LIABILITIES ARISING FROM OR RELATING TO AI FEATURES OR AI OUTPUT, INCLUDING WITHOUT LIMITATION DAMAGES FROM RELIANCE ON, DEPLOYMENT OF, OR ACTIONS TAKEN BASED ON AI OUTPUT, OR FROM ACTIONS TAKEN BY AI AGENTS WITHIN THE SCOPE OF PERMISSIONS GRANTED BY CUSTOMER, SHALL BE SUBJECT TO THE LIABILITY CAP SET FORTH IN THIS SECTION 12 AND SHALL NOT, BY THEMSELVES, CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

13. Security and Data Protection

Testkube commits to maintaining a minimum level of security in accordance with industry standards, including regular security audits and penetration testing. Details of security measures and recent audit findings are available upon request by Customer.

In the event of a data loss or security breach, Testkube shall promptly notify Customer and take steps to mitigate the impact pursuant to the classification of such loss or breach pursuant to Schedule B. Testkube agrees to compensate Customer for any direct damages resulting from a data loss or security breach subject to the limitations set forth in this Agreement, provided that such data loss or security breach is not due to a factor or factors outside of Testkube's reasonable control, including but not limited to the Contributions, Customer Third Party Solutions, or Force Majeure Events.

Testkube's data protection and security obligations under this Section 13 do not extend to actions taken by AI Agents within the scope of permissions, credentials, or configurations granted or established by Customer, or to consequences arising from Customer's failure to implement appropriate scoping, isolation, or human-review controls as contemplated by Section 4.3.

14. Insurance

Testkube maintains comprehensive insurance coverage relevant to its business operations and Services provided under this Agreement. Upon Customer's request, Testkube shall furnish a certificate of insurance evidencing such coverage.

15. Dispute Resolution

15.1 Arbitration. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute may be resolved by binding arbitration. CUSTOMER UNDERSTANDS THAT THIS PROVISION WAIVES CUSTOMER'S RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website, www.adr.org. Customer's arbitration fees and Customer's share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Delaware. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

If, for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Delaware, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.

If Section 15.1 is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

15.2 Restrictions. The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

15.3 Exceptions to Arbitration. The Parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration:

• Any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party;
• Any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and
• Any claim for injunctive relief.

If any provision of this Section 15 is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the state and federal courts of the State of Delaware, and the Parties agree to submit to the personal jurisdiction of that court.

16. Representations and Warranties

Both Parties represent and warrant that:

• The Party has the authority to enter into this Agreement, which shall constitute a valid and binding obligation; and
• Entering into this Agreement does not and will not violate any laws or regulations; and
• The information provided in this Agreement is true and accurate.

Customer further represents and warrants that:

• Customer shall only access and use the Products and Services for the Acceptable Commercial Uses; and
• Customer shall not use the Products or Services for any illegal or unauthorized purposes.
• Customer shall implement appropriate human review and verification processes prior to relying on or deploying AI Output in any production or business-critical context, and shall not use AI Features in any manner inconsistent with Section 4.3.

17. Language

This Agreement is made in the English language only. English is the sole official and legally binding language of this Agreement, all Order Forms, Schedules, notices, communications, and any other documents exchanged between the Parties in connection herewith. In the event this Agreement or any part thereof is translated into any other language, whether for convenience, informational purposes, or otherwise, the English language version shall govern and control in all respects, and the translated version shall have no legal force or effect. Customer acknowledges that it has read and understood this Agreement in English, and that Testkube provides no warranty as to the accuracy of any translation. All correspondence, notices, invoices, and support communications between the Parties shall be conducted in English. Any waiver of this provision must be made expressly in writing and signed by duly authorized representatives of both Parties.

18. Electronic Communications and Transactions

Customer consents to receive electronic communications from Testkube and agrees that all agreements, notices, disclosures, and other communications Testkube provides to Customer electronically, via email and on the Products or Services, satisfy any legal requirement that such communication be in writing. CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED IN WRITING OR VIA THE SERVICES. Customer acknowledges and accepts that its signature on the Order Form attached in Schedule A shall be considered its signature to this Agreement. Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

Any notice required or permitted under this Agreement shall be in writing and shall be deemed effectively given upon delivery when transmitted by electronic mail to the individual and email address specified below:

• For Testkube: Juan Ibarra, juan@testkube.io
• For Customer: Customer contact information to be designated on the Order Form

19. Miscellaneous

This Agreement constitutes the entire agreement and understanding between the Parties. Testkube's failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement operates to the fullest extent permissible by law.

Testkube shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any Force Majeure Event or any other cause beyond Testkube's reasonable control.

If any provision or part of a provision of this Agreement is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

There is no joint venture, partnership, employment, or agency relationship created between the Parties as a result of this Agreement.

Testkube may assign any or all of its rights and obligations to others at any time. In the event of such an assignment, Customer shall have the right to terminate this Agreement within 30 days of receiving written notice of the assignment by providing written notice to Testkube or its assignee. Such termination shall be effective immediately upon receipt of the notice by Testkube or its assignee, and Customer shall be entitled to a pro-rata refund of any prepaid fees for Products or Services not rendered as of the date of termination.

Survival. The provisions of Sections 5, 6 (with respect to amounts owed at termination), 7 (with respect to data deletion), 10, 11, 12, 13, 15, and 17 through 19, together with any Customer obligations relating to AI Output and AI Agent actions arising prior to termination, shall survive termination or expiration of this Agreement.

Schedule A

Description of Ordered Products and Services

Order Form

Total: ___________

Control Plane Hosting Option: ☐ Testkube-Hosted Control Plane ☐ Customer-Hosted Control Plane

License Summary: The quantities of Licensed Agents and Licensed Users set forth in this Order Form represent the total licensed capacity for the Control Plane identified herein, measured in aggregate across all Organizations within that Control Plane.

Note: Customer may switch between hosting options during the Term by providing thirty (30) days written notice to Testkube. Any additional fees or credits associated with switching will be calculated pro-rata based on the remaining Term.

Additional Terms

AI Features Enabled: ☐ Yes ☐ No. If Yes, AI Features are subject to Section 4.3 and the AI Output license set forth therein.

Schedule B

Issue Classification and Support Timelines

[All times to be confirmed]

All Commercial Plans Except Starter — Slack, Customer Support Portal, email

Starter Plan — Slack only

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