Index

Terms and Conditions

Last updated: 11 March 2024

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.

01. LICENSE; TERM

This Agreement governs User's access, installation, configuration and/or use of the Product in any capacity.

1.1. License. Except with respect to Licensor OSS (as defined below), subject to the User's continued compliance with the terms and conditions of this Agreement, Licensor hereby provides User, during the Term (as defined below), a limited, personal, revocable, non-exclusive, non-transferable, non- assignable, non-sublicensable right and license to use and the Product solely for User's internal business purposes or personal use (the "License"). For the avoidance of doubt, User may not disclose or use the Product or any components thereof on behalf of or in connection with any third party's products, services, or research and development activities; provided that, upon Licensor's prior written consent, User may use the Product in connection with User's clients who are bound to an unmodified form of this Agreement with Licensor.

1.2. Source Code Rights. In connection with this Agreement, Licensor may make available for download certain files and software components of the Product, other than Licensor OSS, in source code form (the "Source Code Programs"). Such Source Code Programs shall be subject to the License and other terms and conditions of this Agreement (including Section 3), provided that User may modify and create derivative works of the Source Code Programs (collectively, "Improvements") solely for use in connection with its use of the Product in accordance with the terms herein. User shall not, under any circumstances, publish or otherwise share any Improvements with any third party.

1.3. Term. Subject to Section 7 (Termination), User shall be entitled to use the Product without any explicit licensing time period.

02. FEEDBACK

During the Term, User may provide to Licensor feedback and suggestions regarding the use, operation, performance, and functionality of the Product ("Feedback"). Such Feedback may include information about operating results, performance, known or suspected bugs, errors or compatibility problems and user-desired features. User hereby grants to Licensor an unlimited, perpetual, irrevocable, worldwide, transferable, sub-licensable, and royalty-free right to use and otherwise exploit the Feedback in any manner.

03. RESTRICTIVE USE

User agrees that it will not: (i) except as expressly permitted in Section 1, reproduce, modify, distribute, disclose or make available to any third party any portion of the Product in any form; (ii) publish, license, sublicense, transfer or assign, in whole or in part, any portion of the Product; (iii) except as expressly permitted in Section 1 with respect to the Source Code Programs, reverse engineer, decompile or disassemble any portion of the Product, or otherwise attempt to decrypt, extract or derive the source code for the software (or any parts thereof) embedded therein; (iv) access or use the Product in order to build a similar or competitive product or service; (v) publish or disclose to any third party any performance or benchmark tests or analyses or other non-public information relating to the Product or the use thereof; (vi) access or use the Product to develop, or introduce into the Product, any harmful or malicious code or programs, such as computer viruses, Trojan horses, ransomware, spyware or other malware; (vii) use the Product in any applications in which failure of such Product could reasonably be expected to result in personal injury, loss of life or property damage, including any life sustaining, medical or nuclear use; or (viii) use the Product in any service bureau or time-sharing arrangement. The software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. User shall not remove any copyright or other proprietary notices from the Product. Without limiting Licensor's other rights or remedies, User agrees to defend, indemnify and hold Licensor and its affiliates and its and their employees, officers, directors, and agents harmless from and against any claims, losses, damages, and expenses (including reasonable attorneys' fees) to the extent arising from User's breach of this Agreement.

User acknowledges and agrees that any telephone calls between User and Flox representatives may be recorded and/or monitored for training, quality assurance or other business purposes. User also agrees that Flox and Flox’s third-party service providers may record and use information about User's interactions with the Product and User’s communications with Flox for quality assurance, research, development and other purposes as described in Flox’s Privacy Policy.

05. THIRD PARTY CODE

5.1. Certain items of software code provided within the Product and/or Source Code Programs, or which are intended to be downloaded separately by User and used with the Product, are licensed from third parties and are 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. 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.

5.2. Notwithstanding Section 5.1, User shall not use the Product in connection with any Free and Open Source Software ("FOSS", as further defined below) in such a way that would require all or any part of the Product or any source code that incorporates or discloses any part of thereof to be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; (iii) redistributable at no charge; or (iv) subject to any FOSS licensing terms or obligations. As used above, "FOSS" or "Free and Open Source Software" means any software that is subject to terms that, as a condition of use, copying, modification, or redistribution, requires such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivatives works, or to be redistributed at no charge, including software distributed under the GNU General Public License or GNU Lesser General Public License (formerly known as "the GNU Library General Public License") or any version thereof.

5.3. LICENSOR OPEN SOURCE SOFTWARE. Certain items of software intended to be used in connection with the Product may be separately made available by Licensor via one or more public software code repositories such as GitHub under one or more FOSS licenses identified by Licensor in connection with such repositories (the “Licensor OSS”). Each item of Licensor OSS is not deemed part of the Product hereunder nor subject to the terms and conditions of this Agreement and, instead, is licensed under the terms of the FOSS license that accompanies such Licensor OSS.

06. TITLE; RESERVATION OF RIGHTS

As between the parties, Licensor and its affiliates or licensors shall retain all right, title, and interest in and to the Product, including all Improvements thereto, and in all intellectual property rights therein, including as may be applicable, all patent, trademark, copyright, rights in computer software, database rights and trade secrets, whether registered or not registered. No license or other express or implied rights of any kind are granted or conveyed except for the limited internal License expressly provided in Section 1 above. As between User and Licensor, the Product shall remain Licensor's sole and exclusive property. To the extent User obtains any ownership rights in any Improvements, User shall, and hereby does, irrevocably and unconditionally assign to Licensor, its entire right, title and interest in and to such Improvements, including all intellectual property rights therein. User shall not offer, loan, license, transfer, encumber, or otherwise dispose of the Product to any third party without having received prior written authorization from Licensor. Except as expressly provided herein, all rights are reserved by Licensor and its affiliates or licensors, as applicable.

07. TERMINATION

Either party may terminate this Agreement earlier for convenience with immediate effect upon written notice to the other party (including via email). In addition, this Agreement will terminate immediately upon any breach by User. Upon termination or expiration of this Agreement for any reason, User's rights to use the Product shall immediately expire, User shall cease any use of the Product and delete all copies thereof (including all copies of Source Code Programs), and an officer of User shall certify such deletion in writing to Licensor; otherwise, the terms and conditions of this Agreement will survive.

08. DISCLAIMER OF WARRANTIES

USER UNDERSTANDS THAT THE LICENSOR IS PROVIDING THE PRODUCT AND THE SOURCE CODE PROGRAMS ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR USE BY USER AT ITS OWN RISK. LICENSOR AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND AND DISCLAIM ALL WARRANTIES RELATING TO THE PRODUCT AND THE SOURCE CODE PROGRAMS OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, RELIABILITY, ACCURACY OR COMPLETENESS. USER BEARS THE ENTIRE RISK OF DETERMINING WHETHER TO USE THE PRODUCT AND THE SOURCE CODE PROGRAMS UNDER THE TERMS PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM.

09. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, OR ITS AFFILIATES OR LICENSORS, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PRODUCT, THE SOURCE CODE PROGRAMS OR OTHER MATERIALS PROVIDED ALONG WITH THE PRODUCT OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR'S AGGREGATE AND CUMULATIVE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF $100.00 US DOLLARS.

10. SQUATTING

ACCOUNT NAME SQUATTING REFERS TO THE REGISTRATION OR USE OF A FLOXHUB ACCOUNT NAME WITH THE INTENT TO PREVENT OTHERS FROM USING IT. LICENSOR RESERVES THE RIGHT TO INTERVENE WHEN IT DETERMINES, AT ITS SOLE DISCRETION, THAT A USER IS SQUATTING ON A FLOXHUB ACCOUNT NAME THAT IS OWNED BY ANOTHER LEGAL ENTITY. LICENSOR MAY, WITHOUT NOTICE, RECLAIM OR MODIFY FLOXHUB ACCOUNT NAMES ASSOCIATED WITH ACCOUNTS ENGAGED IN SQUATTING ACTIVITIES.

11. GENERAL PROVISIONS

11.1. Governing Law and Venue. This Agreement will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different state. To the extent permitted by applicable law, each party hereby expressly consents to the personal jurisdiction and venue in the federal courts in New York, New York (or, if the federal courts do not have jurisdiction, the state courts in New York, New York) for any lawsuit filed there arising from or related to this Agreement. The parties hereby waive the right to trial by jury.

11.2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by applicable law.

11.3. No Assignment. This Agreement, and User's rights and obligations herein, may not be assigned, delegated, or transferred by User without Licensor's prior written consent, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Any change of control, merger, or other acquisition of all or substantially all of User's assets or business will be deemed an assignment requiring consent hereunder. Licensor may assign, delegate or transfer this Agreement, in whole or in part.

11.4. Notices. All notices or other communications required under Sections 7 and 11 of this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. All other notices and communications may be made by email instead.

11.5. Waiver. 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.

11.6. Export. The Product, its software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. User agrees not to export, reexport, or transfer, directly or indirectly, the Product or any technical data acquired from Licensor in violation of the United States or foreign export laws or regulations.

11.7. Publicity. User shall not disclose the existence of this Agreement or its terms or make a public announcement regarding the business relationship of the parties or use any mark, logo or tradename owned or used by Licensor or any of its affiliates, without the express written consent of Licensor.

11.8. Including. "Including" and its derivatives (such as "include" and "includes"), whether or not capitalized in this Agreement, and the provision of examples herein, shall not be interpreted as words of limitation and shall be deemed to be immediately followed by the words "without limitation".

11.9. Headings. The division of this Agreement into Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in the construction or interpretation of this Agreement.

11.10. 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.