Terms and Conditions

IMPORTANT: PLEASE READ THIS LICENSE AGREEMENT TERMS & CONDITIONS ("AGREEMENT") BEFORE ACCESSING, INSTALLING, CONFIGURING, AND/OR USING "FLOX" AND/OR THE "FLOXHUB" SOFTWARE AND TECHNOLOGY THAT IS PROVIDED OR OTHERWISE MADE AVAILABLE BY FLOXDEV, INC. ("LICENSOR") OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT (INCLUDING THROUGH THIRD PARTY PLATFORMS SUCH AS GITHUB), INCLUDING ANY SOFTWARE CODE, SPECIFICATIONS AND DOCUMENTATION PROVIDED IN CONNECTION THEREWITH (COLLECTIVELY, THE "PRODUCT").

BY ACCESSING, INSTALLING, CONFIGURING AND/OR USING THE PRODUCT IN ANY WAY, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF THE ENTITY THAT YOU REPRESENT ("USER"): (A) ACCEPT THE TERMS AND CONDITIONS HEREOF AND UNCONDITIONALLY CONSENT TO BE BOUND BY AND WILL BE A PARTY TO THIS AGREEMENT WITH LICENSOR; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

IF USER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USE OF THE PRODUCT IS STRICTLY PROHIBITED.

1.1 "Authorized User" means each of User's employees, agents, and independent contractors who are authorized to access the Flox Solution pursuant to User's rights under this Agreement.

1.2 "User Materials" means any data, materials, software or other information provided or created by User or its Authorized Users in connection with their use of the Services as permitted pursuant to this Agreement.

1.3 "Documentation" means the User manuals and other documentation provided by Flox for use with the Flox Solution.

1.4 "Flox CLI Offering" means the command line interface offered by Flox, which can be installed in User's environment and is made available pursuant to the open source GNU General Public License v2.0 (the "GPLv2.0"), as may be further described in a Statement of Work.

1.5 "Flox Installer" means Flox's installer, which facilitates installation of the Flox CLI Offering in User's environment.

1.6 "Flox Platform" means Flox's software development platform, together with any related applications, that are further described in a Statement of Work and made available as a Flox-hosted solution.

1.7 "Flox Solution" means Flox's provision of: (a) the Flox CLI Offering; (b) the Flox Installer; (c) the Flox Platform; and (d) any other products or services set forth in any applicable Statement of Work.

1.8 "Services" means any services provided by Flox to UserCustomer under this Agreement as described in a Statement of Work, including, but not limited to, provision of the Flox Solution and, as may be applicable, other Professional Services.

2. PROVISION OF SERVICES AND SOLUTION.

2.1 Services Subject to the terms and conditions of this Agreement, Flox will provide access to the Flox Solution, either (i) pursuant to a Master Services Agreement between Flox and an organization, or (ii) on a self-service or free basis to individual Users.

Flox will provide each User, or the organization's administrator, with the necessary access credentials ("Access Protocols") to enable use of the Flox Solution. Users are responsible for maintaining the confidentiality of their access credentials and for all activities occurring under their accounts. Organizations are responsible for managing their Authorized Users, including promptly notifying Flox when an individual's access should be revoked or modified.

Users and organizations must take reasonable steps to prevent unauthorized access to or use of the Flox Solution and must promptly notify Flox of any known or suspected unauthorized use or security breach.

2.2 License Grant. Subject to the terms and conditions of this Agreement, Flox grants to User a non-exclusive, non-transferable (except as permitted under Section 10.1), non-sublicensable license during the term of this Agreement in accordance with the terms and conditions herein, to, solely in accordance with the Documentation, for internal business use only: (a) download, install and execute the Flox Installer (subject to Section 3.3); and (b) access and use the Flox Platform (and any other aspects of the Flox Solution not otherwise provided in subsections (a) or (b) above). User may only permit Authorized Users to access and use the features and functions of the Flox Solution under this Agreement.

2.3 User Responsibility. The Flox Solution (excluding the Flox CLI Offering), along with all related software, technology, algorithms, processes, designs, hierarchies, user interfaces, and any intellectual property rights associated with or embedded in the foregoing—including any enhancements or modifications—is the exclusive property and Confidential Information of Flox.

As a User, you agree that you will not, and will not permit others to:

• Grant any third party access to the Flox Platform;
• Modify, adapt, alter, or translate the Flox Solution, unless otherwise permitted by an applicable open source license;
• Sublicense, sell, loan, distribute, transfer, or otherwise make the Flox Solution available to any unauthorized third party;
• Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying structure, or algorithms of the Flox Solution;
• Interfere with the normal operation of the Flox Solution or the hardware and network supporting it;
• Copy, modify, or create derivative works based on any component of the Flox Solution;
• Use the Flox Solution to develop, improve, or support any competing or similar product or service;
• Attempt to access the Flox Solution through any unauthorized or unapproved interface.

You are also responsible for ensuring that your use of the Flox Solution complies with all applicable laws and regulations, and for obtaining any hardware, software, or internet access necessary to use the Flox Solution.

2.4 Flox Responsibility. Flox shall comply with all applicable laws in connection with the provision of the Services, including as relates to its processing of any User Materials. Flox will maintain commercially reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the User Materials.

3. INTELLECTUAL PROPERTY.

3.1 Flox Solution. The Flox Solution, together with any related software, technology, algorithms, processes, designs, hierarchies, User interfaces and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Flox. All rights not expressly granted to User in this Agreement are reserved by Flox.

3.2 User Materials. The User Materials, including any modifications made by User through the use of the Flox Solution, are the exclusive property and Confidential Information of User. All rights in and to the User Materials not expressly granted to Flox in this Agreement are reserved by User.

3.3 Third-Party Code. Certain items of software code provided within the Flox Solution may be licensed from third parties and may be subject to "open source" or "free software" licenses from such licensors ("Third-Party Code"). The Third-Party Code is licensed under the terms of the license that accompanies or otherwise is applicable to such Third-Party Code, and User must comply with the terms of such license. Nothing in this Agreement limits User's rights under, or grants User rights that supersede, the terms and conditions of any applicable license for the Third-Party Code, including any rights to copy, modify or distribute Third-Party Code under the applicable license. Without limiting the foregoing, because the Flox CLI Offering is based on Third-Party Code and subject to GPL v2.0, the terms of such license shall govern User's use of the Flox CLI Offering in the event of any conflict with the terms of this Agreement.

3.4 Feedback & Aggregate Data. Both during and after the term, Flox may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by User, including Authorized Users, without restriction or obligation; and (b) collect, use and analyze data provided to Flox or otherwise arising during the use of the Services (excluding, for the avoidance of doubt, any personally identifiable information), in order to improve and enhance the Flox Solution and the Services and for other development, diagnostic and corrective purposes for offerings of Flox.

4. PAYMENTS.

4.1 Fees and Payment Terms. Your access to and use of the Services is subject to your payment of the applicable fees due for the Services selected by you ("Fees"), as set forth in the applicable agreement between you and Flox, or otherwise indicated by Flox from time to time. Such Fees, along with any other applicable amounts, charges, or taxes, shall be as noted on the invoice and viewable in your account profile. Unless otherwise set forth in the invoice or a separate order form, all invoiced amounts are due thirty (30) days after the invoice date. All payments must be made in U.S. dollars. Fees are non-refundable unless otherwise expressly stated by Flox in writing. Any amounts not paid when due will accrue interest at one and one-half percent (1½%) per month or the maximum rate permitted by applicable law; whichever is less, from the due date until paid.

4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and User will be responsible for payment of all such taxes (other than taxes based on Flox's income), fees, duties and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services or the license of the Flox Solution to User. User will make all payments of Fees to Flox free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Flox will be User's sole responsibility, and User will provide Flox with official receipts issued by the appropriate taxing authority, or such other evidence as the Flox may reasonably request, to establish that such taxes have been paid.

5. CONFIDENTIALITY.

5.1 Confidential Information. "Confidential Information" means any nonpublic information of a Party (the "Disclosing Party"), whether disclosed orally or in written or digital media, that is identified as "confidential" or with a similar legend at the time of such disclosure or that the receiving Party (the "Receiving Party") knows or should have known is the confidential or proprietary information of the Disclosing Party.

5.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to User) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information (with respect to Flox). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.

6. TERM AND TERMINATION.

6.1 Term. This Agreement begins on the Effective Date and continues until terminated.

6.2 Termination. You may terminate this Agreement at any time by stopping use of the software or by contacting the Flox team. For enterprise customers, the Agreement will remain in effect until all active Statements of Work are completed or terminated.

6.3 Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.

6.4 Effect of Termination. Upon expiration or termination of this Agreement for any reason, User's use of and rights to the Services and Flox Solution shall cease and any amounts owed to Flox under this Agreement will become immediately due and payable. Sections 2.3, 5, 6.3 and 7 to 10 will survive expiration or termination of this Agreement.

7. WARRANTIES AND DISCLAIMERS.

7.1 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery or performance of this Agreement by the executing Party; and (c) the execution, delivery and performance of this Agreement by the executing Party does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

7.2 Flox Warranties. Flox represents and warrants that it will provide the Services under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and in compliance with applicable laws, rules and regulations.

7.3 User Warranty. User represents and warrants to Flox that (a) User owns has sufficient rights for the use of the User Materials in accordance with this Agreement, and (b) User will use the Services in compliance with any Documentation or other instructions provided by Flox and applicable law.

7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND FLOX SOLUTION (INCLUDING ANY SOFTWARE CODE PROVIDED WITHIN THE FLOX SOLUTION) ARE PROVIDED "AS IS," AND FLOX MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. FLOX DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES FLOX GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICES. USER'S USE OF THE SERVICES IS AT ITS OWN RISK, AND USER IS SOLELY RESPONSIBLE FOR ITS USE OF THE FLOX SOLUTION (INCLUDING ANY SOFTWARE CODE PROVIDED WITHIN THE FLOX SOLUTION). FLOX SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.

8. LIMITATION OF LIABILITY.

8.1 EXCEPT FOR EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO FLOX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM IS BROUGHT AND IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 Types of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

8.3 Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO FLOX IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL FLOX HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.

8.4 Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and this Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

9. INDEMNIFICATION.

9.1 By Flox. Flox will defend at its expense any claim, action or suit brought against User (including reimbursement of User's reasonable legal or expert fees or related litigation costs), and will pay any settlement Flox makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Flox Solution (excluding any Third-Party Code) infringes such third party's patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, Flox will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon (a) any use of the Services not in accordance with this Agreement; (b) changes to the Flox Solution made by User; or (c) any use of the Services in combination with other products, services, software or data not supplied by Flox. THIS SECTION 9.1 STATES FLOX'S ENTIRE LIABILITY AND USER'S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.

9.2 By User. User will defend at its own expense, any claim, action or suit brought against Flox and its affiliates, employees, directors and agents from and against any and all third-party claims, and pay all liabilities, losses, damages, costs and other expenses (including reimbursement of Flox's reasonable legal or expert fees or related litigation costs), and will pay any settlement User makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the User Materials infringe such third party's patents, copyrights or trade secret rights under applicable laws within the United States of America.

9.3 Procedure. The foregoing obligations are conditioned on the indemnified Party (a) notifying the indemnifying Party promptly in writing of such action, (b) giving indemnifying Party sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at indemnifying Party's request and expense, assisting in such defense. The indemnified Party shall not agree to settle any such claim without the indemnifying Party's express prior written consent.

10. MISCELLANEOUS.

10.1 Assignment. Except as expressly authorized, neither Party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, either Party shall have the right to assign this Agreement, upon written notice but without the need for prior consent, to any affiliate or successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, restructuring or otherwise.

10.2 Notices. All notices or demands required hereunder shall be in writing and shall be delivered personally or sent by certified or registered mail, return receipt requested, or by overnight express service, e.g., Federal Express, to the appropriate Party at the address stated above, his or her successor or other designee or officer of the Party. Any notice or demand mailed as aforesaid shall be deemed to have been delivered on the date of delivery or refusal, as the case may be, set forth on the return receipt.

10.3 Governing Law and Venue. This Agreement and all exhibits and order forms will be governed by and interpreted in accordance with the laws of the State of New York, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be brought in a state court in New York County or federal court in New York, New York and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.

10.4 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.5 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

10.6 Entire Agreement; Modification. This Agreement constitutes the entire agreement between User and Licensor and supersedes in their entirety any and all oral or written agreements previously existing between User and Licensor with respect to the subject matter hereof. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.