Terms of Service
Hosted Services Agreement
Last Updated: September 1st, 2026
THIS CLOUD SERVICES AGREEMENT (THIS “AGREEMENT”), TOGETHER WITH ANY ORDER THAT REFERENCES IT, GOVERNS CUSTOMER’S USE OF THE FOVUS SOLUTIONS. BY ACCESSING OR USING THE FOVUS SOLUTIONS: (A) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF THE COMPANY, OR OTHER ENTITY FOR WHICH YOU ARE ACTING OR, IF THERE IS NO COMPANY, OR OTHER ENTITY FOR WHICH YOU ARE ACTING, ON BEHALF OF YOURSELF AS AN INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY, OR OTHER ENTITY (IF ANY).
WITHOUT LIMITING THE FOREGOING, YOU (AND YOUR COMPANY OR ENTITY, IF ANY) ACKNOWLEDGE THAT BY SUBMITTING, PAYING FOR, OR AGREEING TO ANY ORDER (OR OTHER ORDERING OR PURCHASING DOCUMENT, SUCH AS AN INVOICE) FOR THE FOVUS SOLUTIONS, YOU (AND YOUR ENTITY (IF ANY)) HAVE AGREED TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY PORTION OF THE FOVUS SOLUTIONS.
This Agreement is entered into by and between Fovus Corporation, a Delaware corporation (the “Company”), and the legal entity identified as the customer in the applicable Order, signature block, or online activation record through which this Agreement is accepted (“Customer”), and is effective as of the Effective Date.
Definitions. Capitalized terms used but not otherwise defined in this Agreement have the meanings as follows:
“Affiliate” of a party means an entity that controls, is controlled by, or is under common control with such party.
“Authorized User” means employees or agents of Customer or its Affiliates selected by Customer to access and use the Fovus Solutions.
“Annual Commitment” means the binding net Subscription Fees and Subscribed Fovus Credits stated in an Order for HPCaaS Annual for each applicable annual period of a Subscription Term, regardless of the billing schedule selected by Customer.
“Automatic Recharge” means an optional PAYG credit purchase initiated automatically under Customer’s configured balance, estimated-job-requirement, purchase-amount, and spending-control settings. Each successful Automatic Recharge creates a separate Credit Lot.
“Billing Model” means either the Subscription Model or the PAYG Model. The Subscription Model applies to Subscribed Fovus Credits and usage governed by an active Order. The PAYG Model applies when Customer has activated PAYG for the applicable Workspace, whether or not Customer currently holds any available Credit Lots.
“Billing Period” means an installment or payment interval stated in an Order. A quarterly Billing Period is a payment schedule only and does not create a quarterly Subscription Term or any quarterly cancellation, renewal, or credit-expiration right.
“Fees” means Subscription Fees, PAYG Fees, and any other fees payable under this Agreement or an applicable Order.
“Pay-As-You-Go Model” or “PAYG Model” means the self-service hosted purchasing model under which Customer purchases Fovus Credits in advance, either manually or through optional Automatic Recharge, at the applicable per-Credit purchase price. PAYG does not require an annual commitment, minimum usage commitment, renewal commitment, Order, or purchase order, although any transaction minimum will be displayed in the Workspace before purchase.
“PAYG Fees” means the amounts paid or payable for Fovus Credit purchases under the PAYG Model, including manual purchases and Automatic Recharges, excluding applicable taxes and separately stated pass-through charges unless expressly included.
“Credit Lot” means Fovus Credits acquired through a single PAYG credit purchase, including an Automatic Recharge, that share the same purchase date and expiration date.
“Payment Method” means a valid electronic payment method capable of automatic charges, including a payment card, an account authorized for automated bank debit, or another electronic payment method accepted by the Company and configured through the Company’s designated payment processor. Checks, manually initiated wire transfers, invoices, and purchase orders do not constitute a Payment Method for PAYG.
“HPCaaS Annual” or “Subscription Model” means the hosted subscription model under which Customer makes a binding annual or multi-year commitment for Subscribed Fovus Credits pursuant to an Order. HPCaaS Annual pricing is based on the contracted per-Credit rate stated in the Order.
“Benchmarking Data” means the data and metadata related to benchmarking generated through the creation of benchmarking profiles, comparative tests, or evaluations within the Fovus Solutions.
“Cloud Environment” means a cloud or other compute or storage infrastructure controlled by a party according to context and utilized under the Agreement.
“Customer Content” means all data input into or made available by Customer for processing within the Fovus Solutions or generated from the Fovus Solutions by Customer; provided that Customer Content shall explicitly exclude any Benchmarking Data. For clarity, Benchmarking Data does not include Customer Content and shall not be deemed derived from or attributable to Customer Content.
“Customer Data” means the data, other than Customer Instructional Input, made available by Customer and its Authorized Users for processing within the Fovus Solutions. For the avoidance of doubt, Customer Data does not include any Benchmarking Data.
“Customer Instructional Input” means information other than Customer Data that Customer inputs into the Fovus Solutions to direct how the Fovus Solutions process Customer Data, including, without limitation, the code and any libraries (including third-party libraries) Customer utilizes within the Fovus Solutions.
“Customer Results” means any output Customer or its Authorized Users generate from their use of the Fovus Solutions; provided that Customer Results shall explicitly exclude any Benchmarking Data.
“Disabled Materials” means certain materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with the Fovus Solutions as part of the delivery mechanism used by the Company, but that are disabled or hidden in Customer’s setting, because Customer either: (a) does not have the relevant license or license key, or (b) has not paid the applicable Fees, for those materials. For clarity, Disabled Materials do not include core hosted-platform features that the Fovus Hosted Pricing Guide states are included under both Billing Models.
“Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation in connection with the Fovus Solutions provided by the Company to Customer together with access to the Fovus Solutions, including, without limitation, the Documentation and Articles available at [Fovus Serverless HPC Platform Help Center].
“Effective Date” means the earliest of (i) the effective date of the initial Order that references this Agreement, (ii) the date of last signature or electronic acceptance of this Agreement, or (iii) the date Customer first accesses or uses the Fovus Solutions.
“Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to the Company in connection with the Fovus Solutions. Feedback does not include any data, results or output created or generated by Customer using the Fovus Solutions, unless specifically submitted or communicated by Customer to the Company as part of the Feedback.
“Fovus Credit” means a prepaid contractual usage unit that may be applied to eligible compute, storage, data-transfer, and other consumption described in the Fovus Hosted Pricing Guide or applicable Order. Fovus Credits are not currency, stored value, a financial instrument, or a cash balance and confer no property or monetary right on Customer.
“Fovus Hosted Pricing Guide” means the Company’s then-current hosted pricing guide describing PAYG and HPCaaS Annual pricing and Fovus Credit consumption, available at [Fovus Hosted Pricing Guide], as updated subject to Section 2(c).
“Fovus Solutions” means the Fovus products and services made available through software hosted by the Company, including any Software-as-a-Service (SaaS), command-line interface (CLI), API, workflow integration, storage, compute, and related functionality, as described in the Documentation, the Fovus Hosted Pricing Guide, and any applicable Order.
“Government” means an agency, department, or instrumentality of the United States government.
“Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
“Internal Business Purpose” means Customer’s and its Affiliates’ use for its own business operations on Customer’s and its Affiliates’ systems, networks and devices with Customer’s data.
“Licensed Capacity” means: (a) under the Subscription Model, the Subscribed Fovus Credits and any other usage or capacity limits stated in the applicable Order; or (b) under the PAYG Model, Customer’s available Fovus Credit balance and any configured purchase, spending, concurrency, or Automatic Recharge limits. A PAYG limit does not constitute a minimum commitment.
“Order” means an order form, work order, online order, confirming invoice, renewal, amendment, or similar agreement accepted by the parties or their Affiliates for an HPCaaS Annual subscription. An Order is required for the Subscription Model but is not required for the PAYG Model.
“Pilot Term” means a limited period expressly identified in an applicable Order during which Customer has only those cancellation or refund rights expressly stated in that Order. A Pilot Term does not create any cancellation, refund, credit-extension, or other termination right unless the applicable Order expressly provides it.
“Shared Data” means (i) Customer Content that Customer elects to share with third parties or (ii) data Customer elects to receive from third parties, under an applicable configuration of the Fovus Solutions.
“Subscription Term” means the one-year period, or a longer multi-year period, stated in the applicable Order. Unless the Order states otherwise, the initial Subscription Term is twelve (12) months. A quarterly Billing Period does not constitute a quarterly Subscription Term.
“Renewal-Notice Deadline” means sixty (60) days before the end of the then-current Subscription Term, unless the applicable Order expressly states a different notice period.
“Subscribed Fovus Credits” means the Fovus Credit pool stated in an Order for each applicable annual period of a Subscription Term, subject to the billing and account-funding schedule stated in the Order.
“Subscription Fees” means all amounts Customer commits to pay under an Order for HPCaaS Annual, regardless of whether those amounts are billed upfront, quarterly, or under another billing schedule stated in the Order.
“Usage Data” means usage data and telemetry collected by the Company relating to Customer’s use of the Fovus Solutions, which may include embedded Customer Content, Customer Data, Customer Results, and Shared Data, or a combination of the foregoing. Usage Data may contain queries entered by an Authorized User but not the results of those queries. Usage Data shall not include Customer Content in identifiable form and shall only be used in aggregated and anonymized form.
“Workspace” means a Fovus Solutions environment.
Billing Models; Fees.
General. Customer may access and use the Fovus Solutions under either the Subscription Model or the PAYG Model. Customer may use HPCaaS Annual by entering into an Order specifying the Annual Commitment, contracted per-Credit rate, Subscribed Fovus Credits, Subscription Term, billing schedule, account-funding schedule, and other agreed commercial terms. Customer may use PAYG without an Order or purchase order by: (i) activating PAYG within the applicable Workspace; (ii) configuring a valid Payment Method; and (iii) accepting the then-current PAYG purchase price and payment authorization presented during activation or purchase. Automatic Recharge will apply only if Customer separately enables it. PAYG will not be activated solely because an Order expires or Customer exhausts its Subscribed Fovus Credits. Sections 2(b) and 2(f) through 2(j) apply only to the Subscription Model; Sections 2(c), 2(d), 2(e), and 2(k) apply to both Billing Models; and Section 2(l) applies only to PAYG. Customer may convert from PAYG to HPCaaS Annual by entering into an Order, without entering into a new service agreement.
HPCaaS Annual; Commitment, Billing, and Funding. Customer shall pay the Subscription Fees according to the billing schedule stated in the applicable Order. The Annual Commitment is binding, non-cancellable, and non-refundable for the full Subscription Term, except where required by applicable law, expressly provided in Section 5(c), or expressly provided in an applicable Order that includes a Pilot Term. Quarterly billing is a payment schedule only and does not create a quarterly Subscription Term or any quarterly cancellation, renewal, refund, or credit-expiration right. Customer’s decision not to use the Fovus Solutions does not reduce its payment obligations, and all scheduled installments remain payable. Subscribed Fovus Credits will be made available subject to the billing and account-funding schedule stated in the Order. If usage under a quarterly billing schedule exhausts the then-funded credit balance before the next scheduled Billing Period, the next quarterly installment will be triggered and invoiced immediately. If Customer fails to pay any Subscription Fees when due, the Company may suspend or terminate access as provided in Section 11, without reducing Customer’s payment obligations.
Pricing Updates and Credit Rate Fluctuations. The Company may periodically update the PAYG per-Credit purchase price and the Fovus Credit consumption calculations and rates applicable to eligible compute, storage, data transfer, and other usage. A contracted HPCaaS Annual per-Credit rate will not change during the applicable Subscription Term except as expressly stated in the Order; updated standard pricing may apply beginning with a subsequent renewal term. The Company will provide written notice of any increase to Customer’s contracted per-Credit rate for a renewal term no later than the Renewal-Notice Deadline. If notice is provided after that deadline, Customer may prevent the affected renewal by giving written notice within thirty (30) days after receiving the rate notice. A material change to the PAYG per-Credit purchase price will be communicated at least thirty (30) days before its effective date and will apply only to purchases completed on or after that date. It will not retroactively reprice previously purchased Credit Lots. A material change to the Fovus Credit consumption calculation will be communicated at least thirty (30) days before it applies to subsequent usage. Routine fluctuations resulting from underlying cloud-infrastructure pricing, regional configuration, availability, or the cost of Spot, preemptible, or similar capacity do not constitute a material change requiring separate notice and may be reflected in the consumption rates displayed in the Workspace. Customer’s continued purchases or use after the effective date of a properly notified change constitutes acceptance of that change.
License. Subject to Customer’s timely payment of all applicable Fees and full compliance with this Agreement, the Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license, other than to Customer’s Affiliates with notice to the Company, to access and use the Fovus Solutions within the applicable Licensed Capacity solely for Customer’s Internal Business Purposes: (i) during the applicable Subscription Term under the Subscription Model; or (ii) while PAYG remains activated for the applicable Workspace under the PAYG Model.
Calculation of Fovus Credit Usage. Under both Billing Models, the Company will deduct available Fovus Credits based on actual eligible compute, storage, data-transfer, and other usage under the consumption rates displayed in the Workspace and described in the Fovus Hosted Pricing Guide (the “Calculation”). The Workspace may display an applicable consumption rate and estimated credit requirement before workload launch; such estimate is not a guarantee, and actual consumption will be based on the resources and time used. The Company may update the Calculation as provided in Section 2(c). Within Credit Lots, the Company will apply the oldest-expiring eligible credits first. If Customer converts from PAYG to HPCaaS Annual while Credit Lots remain valid, the applicable Order will state how those Credit Lots are applied alongside the annual pool.
Binding Commitment; No Midterm Cancellation. Except where an applicable Order expressly includes a Pilot Term and provides a cancellation right during that Pilot Term, or where required by applicable law, Customer may not cancel HPCaaS Annual during the Subscription Term. A notice of non-renewal under Section 2(j) prevents the next renewal but does not terminate or reduce Customer’s obligations for the current Subscription Term. Customer remains responsible for the entire Annual Commitment, including quarterly or other installments scheduled after the date of a non-renewal notice. Subject to timely payment and compliance with this Agreement, Customer may continue using the Fovus Solutions through the end of the then-current Subscription Term. Unused Subscribed Fovus Credits expire as provided in Section 2(g) and do not create a refund.
Expiration; No Rollover or Renewal Offset. Unused Subscribed Fovus Credits expire at the end of the applicable twelve-month Subscription Term. For a multi-year Subscription Term, the applicable Order will state how credit pools and expiration apply across the multi-year term. Expired credits do not roll over, carry forward, reduce Subscription Fees for a renewal term, qualify for any renewal offset, convert into PAYG credits, create a refund, or constitute a cash balance. A renewed Subscription Term begins with a new credit pool.
Increase in Annual Commitment; Early Renewal; Credit Exhaustion. Customer and the Company may agree in writing to increase the Annual Commitment during a Subscription Term. The incremental charge will equal the full difference between the new and existing annual commitment values, without proration based on the time remaining in the Subscription Term. Incremental credits will be issued at the per-Credit rate stated in the amendment, will expire on the existing renewal date, and will not change that renewal date. Unless the parties agree otherwise for the next renewal, the increased annualized commitment will become the renewal baseline. For a material expansion, the parties may instead agree to an early renewal. An early renewal must provide for an annual commitment greater than the then-current annualized commitment. A new twelve-month Subscription Term and credit pool will begin on the effective date stated in the renewal Order, and unused credits from the replaced term will expire on that date. If Customer exhausts its Subscribed Fovus Credits, additional usage will be permitted only through an agreed commitment increase, early renewal, separately activated PAYG, or overage terms expressly stated in the applicable Order. PAYG will not be activated automatically merely because Subscribed Fovus Credits are exhausted.
Decrease in Annual Commitment. Customer may not decrease its Annual Commitment during the current Subscription Term. A requested decrease does not create a refund or reduce any current payment obligation. Customer may request a lower Annual Commitment for the next renewal term, but the change must be agreed and documented in a renewal Order by the Renewal-Notice Deadline.
Automatic Renewal. Unless the applicable Order states otherwise, HPCaaS Annual will automatically renew for successive twelve-month renewal terms. Either party may prevent renewal by delivering written notice in accordance with Section 14(b) by the Renewal-Notice Deadline. A timely non-renewal notice does not affect the parties’ rights or obligations during the then-current Subscription Term. Unless the renewal Order states otherwise: (i) the renewed Annual Commitment will be based on the annualized commitment in effect immediately before renewal, including approved increases; (ii) prior-term credits will expire and the renewed term will begin with a new credit pool; and (iii) the existing billing schedule will continue for the renewal term.
Storage and Data Transfer. Customer’s eligible storage and data-transfer usage will deduct available Fovus Credits under either Billing Model according to the consumption rates displayed in the Workspace and described in the Fovus Hosted Pricing Guide. Applicable cloud-provider pass-through charges will be reflected in the applicable Fovus Credit deductions or charged separately at the provider’s applicable rate, as stated in the Workspace, Fovus Hosted Pricing Guide, or applicable Order, but the same pass-through charge will not be collected through both methods.
Pay-As-You-Go Model.
Digital Activation. Customer may activate PAYG directly within a Workspace without entering into an Order or obtaining a purchase order. PAYG becomes active when an Authorized User with sufficient authority: (A) selects or enables PAYG; (B) configures a valid Payment Method; and (C) accepts the then-current PAYG pricing and purchase authorization. Automatic Recharge is optional and requires separate enablement or configuration by Customer. Customer represents that the Authorized User completing activation has authority to bind Customer.
No Minimum Commitment. PAYG has no annual commitment, minimum usage commitment, or renewal commitment. Any minimum for an individual credit purchase will be displayed in the Workspace before purchase. Each purchase is a separate prepaid transaction and does not obligate Customer to make future purchases.
Credit Purchases; Expiration and Use. Each manual purchase or Automatic Recharge creates a separate Credit Lot at the PAYG per-Credit price applicable when the purchase is completed. Subject to earlier expiration under Section 11(d), each Credit Lot expires twelve (12) months after its purchase date. A subsequent purchase or Automatic Recharge does not reset or extend the expiration of an existing Credit Lot. The Company will use the oldest-expiring eligible PAYG credits first. Credit purchases are non-refundable except where required by applicable law. PAYG credits are tied to the purchasing Customer organization and may not be resold or transferred outside that organization without the Company’s prior written approval.
Automatic Recharge. Automatic Recharge is optional. When Customer enables Automatic Recharge, Customer authorizes the Company and its payment processor to charge the Payment Method and purchase one or more Credit Lots whenever Customer’s configured balance threshold, target balance, recharge amount, or estimated job requirement triggers a recharge. Automatic Recharge may occur more than once in a day if the applicable trigger recurs, subject to Customer’s configured spending caps and payment controls. Customer may prospectively update or disable Automatic Recharge settings, but a change will not reverse, cancel, or alter a completed purchase. Workload-cost estimates are not guarantees, and actual credit consumption may differ.
Required Payment Method. Before activating PAYG, Customer must configure and authorize a valid Payment Method for the Workspace and continuously maintain that Payment Method while PAYG remains active. Customer represents that it is authorized to use the Payment Method and authorizes the Company and its designated payment processor to store or tokenize and charge it for manual credit purchases, enabled Automatic Recharges, applicable taxes, and other authorized amounts.
Funding and Receipts. A Credit Lot will be added to Customer’s available balance after the applicable payment is successfully authorized or otherwise confirmed by the Company. The Company will provide an electronic receipt or transaction record identifying the number of credits purchased, applicable per-Credit price, taxes, and total purchase amount. If a payment is subsequently reversed, disputed, or charged back, the Company may remove any unused credits associated with the affected purchase. Customer remains responsible for the purchase price of credits already consumed from that Credit Lot.
No Procurement Condition. PAYG activation and credit purchases do not require an Order, purchase order, invoice approval, procurement process, or other Customer authorization beyond the digital activation and payment authorization described above. Customer’s internal procurement or approval requirements will not delay, invalidate, or excuse payment for a completed manual purchase or Automatic Recharge.
Insufficient Balance and Spending Controls. The Company may prevent the launch of a workload if the estimated credit requirement exceeds Customer’s available balance. If Automatic Recharge is enabled, one or more recharges may occur before launch, subject to Customer’s configured caps. If Customer has insufficient available credits, a configured spending cap is reached, or the required recharge cannot be completed, the Company may prevent new workloads from being submitted or executed and may checkpoint, pause, or terminate queued or running workloads. Customer remains responsible for credits consumed before suspension and may be required to complete an immediate credit purchase sufficient to cover any resulting deficit before service resumes.
Failed Payments. If a Payment Method is missing, expired, invalid, revoked, or declined, or if a manual purchase or Automatic Recharge fails, the Company may immediately hold new workloads and, where reasonably necessary, checkpoint, pause, or terminate queued or running workloads. If Customer fails to provide a valid Payment Method and pay any outstanding amount within ten (10) days after notice, the Company may suspend or terminate PAYG access for the affected Workspace.
Deactivation. Customer may deactivate PAYG at any time without an early termination fee or future purchase obligation. Deactivation becomes effective after queued and running workloads have completed or been stopped. Deactivation does not refund or extend any Credit Lot. Remaining valid Credit Lots retain their original expiration dates and may be used if PAYG is reactivated before those dates, unless this Agreement has been terminated.
Conversion to HPCaaS Annual. Customer may convert from PAYG to HPCaaS Annual by entering into an Order. Remaining valid Credit Lots will retain their original purchase and expiration dates and will not be retroactively repriced or discounted. The Order will state how those Credit Lots are applied alongside the HPCaaS Annual credit pool. PAYG will be disabled for usage covered by the Order unless Customer separately elects and is permitted to maintain PAYG for other usage.
Customer Responsibilities.
General. Customer hereby agrees and covenants that Customer shall be responsible for:
ensuring that each Authorized User has its/his/her own credentials, protecting those credentials, and not permitting any sharing of credentials;
securing any Cloud Environment controlled by Customer, and any Customer system;
backing up Customer Content;
configuring the Fovus Solutions in an appropriate way, taking into account the sensitivity of the Customer Content that the Customer chooses to process using the Fovus Solutions, including Shared Data;
providing such information, and/or access to Customer’s resources and personnel as the Company may reasonably require for providing services under the Fovus Solutions, including, without limitation, providing remote system access (upon mutual agreement) for the Company to replicate potential errors and provide embedded diagnostic information;
using commercially reasonable efforts to ensure that its Authorized Users review the portions of Documentation relevant to its/his/her use of the Fovus Solutions and any security information published by the Company and referenced therein that is designed to assist Customer in securing Customer Content; and
all risks associated with all use of the Fovus Solutions by an Authorized User under such Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not taken by the Company or by a party acting under the direction of the Company.
Use Restrictions. Customer shall not, and shall not permit its Authorized Users to:
copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Fovus Solutions, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by the Agreement or by law notwithstanding this prohibition;
sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Fovus Solutions to any third party except that Customer may sublicense or otherwise provide access to the Fovus Solutions to its Affiliates or to the extent explicitly authorized in writing by the Company;
use the Fovus Solutions to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any product or service of the Company;
transfer or assign any of Customer’s rights hereunder except as permitted under Section 14(c);
access or use any Disabled Materials;
provide to any third party any Benchmarking Data or the results of any evaluation of the Fovus Solutions without the Company’s prior written consent;
attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit, or control the use or copying of, or access to, the Fovus Solutions (including in order to gain access to any Disabled Materials);
remove or obscure any copyright, trademark, patent, or other proprietary notices, legends, or symbols from the Fovus Solutions;
exceed the Licensed Capacity or violate other license limitations identified in this Agreement;
separately use any of the applicable features and functionalities of the Fovus Solutions with external applications or code not furnished by the Company;
use the Fovus Solutions to violate the security or integrity of, or otherwise abuse, any system of any party, including but not limited to gaining unauthorized access to any system (including attempting to probe, scan, monitor, or test the vulnerability of a system), forging any headers or other parts of any message describing its origin or routing, interfering with the proper functioning of any system (including any deliberate attempt by any means to overload a system), implementing denial-of-service attacks, operating non-permissioned network services (including open proxies, mail relays or recursive domain name servers), using any means to bypass system usage limitations, or storing, transmitting or installing malicious code;
use the Fovus Solutions to distribute or facilitate the sending of unsolicited or unlawful emails or other messages, or promotions of any kind;
use the Fovus Solutions to engage in or promote any other fraudulent, deceptive, or illegal activities;
use the Fovus Solutions to process, store or transmit material, including any Customer Data, in violation of any applicable laws or any third-party rights, including without limitation privacy rights;
otherwise access or use the Fovus Solutions except as expressly authorized in this Agreement; or
encourage or assist any third party in doing any of the foregoing.
Customer acknowledges that the Fovus Solutions may display warnings, reduce available functionality, prevent the submission or execution of workloads, or cease functioning if unauthorized or improper use is detected, a Subscription Term expires, the applicable Licensed Capacity or available Fovus Credit balance is exhausted, an Automatic Recharge cap is reached, a required Payment Method becomes invalid, a purchase or recharge fails, or Fees are overdue.
Customer Content.
Customer agrees that Customer shall not include in Customer Content, or generate any Customer Results or any Benchmarking Data that include, any data for which Customer does not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement.
Customer shall not include in Customer Content any personal information unless Customer has entered into a data processing addendum or similar data processing agreement with the Company (the “DPA”). Such DPA, if any, shall be incorporated by reference herein in its entirety. If Customer has not entered into any DPA with the Company or if Customer provides personal information to the Company in violation of the relevant DPA, the Company shall have no liability hereunder relating to such personal information notwithstanding anything in this Agreement or in any applicable laws to the contrary. Fovus will maintain industry-standard administrative, technical, and organizational safeguards designed to protect the security, confidentiality, and integrity of Customer Content, consistent with SOC 2 Type II or equivalent standards.
To the extent that Customer uses any internal software of its own, commercial software and/or other third-party licenses (collectively, “Customer’s Licenses”) in connection with its use of the Fovus Solutions, Customer grants the Company a limited, non-exclusive right to use such Customer’s Licenses solely as necessary to provide the Fovus Solutions to Customer in accordance with this Agreement. In the event that any of the Customer’s Licenses provided by a third party other than Customer does not allow the Company’s use or access in accordance with the foregoing sentence, Customer shall promptly notify the Company in writing and use its best efforts to negotiate with such third party for the Company’s use or access in accordance with the foregoing sentence.
Services Updates. The Company provides the Fovus Solutions according to different architectural models, depending on the specific features being used by Customer, as further described in the Documentation. Therefore, Customer hereby acknowledges and agrees that different portions of the Fovus Solutions are and may in the future be subject to changes reflected in the Documentation or terms and conditions that provide for different rights and responsibilities of the parties for their use.
Ownership.
General. The Company, its suppliers, and/or licensors own all worldwide right, title and interest in and to the Fovus Solutions, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 2(d), Customer will not acquire or claim any right, title, or interest in or to the Fovus Solutions or related Intellectual Property Rights, whether by implication, operation of law, or otherwise. Notwithstanding anything to the contrary, the Fovus Solutions are licensed, not sold, to Customer pursuant to the terms hereof.
Ownership of Customer Content. As between the Company and Customer, Customer retains all ownership or license rights in Customer Content.
Usage Data and Benchmarking Data. Notwithstanding anything contained in this Agreement to the contrary, the Company may collect and use Usage Data and/or Benchmarking Data to develop, improve, operate, and support its products, services, and Benchmarking Data (the “Purpose”). As between the Company and Customer, the Company retains all ownership or license rights in the Usage Data (other than the embedded Customer Content, Customer Data, Customer Results within such Usage Data, which shall remain the property of Customer) and Benchmarking Data. To the extent that Customer retains any of the rights, title and interest in and to any Usage Data and Benchmarking Data that cannot be assigned by Customer to the Company, Customer hereby grants to the Company an exclusive, royalty-free, sublicensable, irrevocable, worldwide license (as necessary to perform or improve the Fovus Solutions) to use such data solely in aggregated and anonymized form for the purpose of developing, improving, operating, and supporting the Fovus Solutions. The Company agrees not to share any Usage Data and/or Benchmarking Data that includes the Confidential Information of Customer except either (i) to the extent that such Usage Data and/or Benchmarking Data is anonymized and aggregated such that it does not identify Customer or the Confidential Information of Customer; or (ii) in accordance with Section 9 of this Agreement. Such Usage Data and Benchmarking Data will be subject to the Company’s Privacy Policy available at [Privacy Policy], which policy is hereby incorporated by reference and made a part of this Agreement.
Publicity. The Company may identify Customer by name and logo as a user of the Fovus Solutions on the Company’s website, in client lists, and in marketing or sales materials, provided that such use is factual and does not include any Confidential Information or imply endorsement, and Customer has not opted out in writing. The Company may publish case studies, quotes, or testimonials from Customer only with Customer’s prior written approval (email sufficient) for the specific content to be used. Customer’s approval shall not be unreasonably withheld or delayed.
Warranties; Warranty Disclaimer; Remedies.
Warranties. Each party represents and warrants that it has the requisite corporate power and authority to enter into this Agreement and the applicable Order and to consummate the transactions contemplated by this Agreement or by any such Order. The Company further warrants that, during the applicable Subscription Term or while PAYG remains activated for the applicable Workspace, it will provide the Fovus Solutions in a professional and workmanlike manner in accordance with the Documentation and will employ commercially reasonable efforts consistent with industry standards to prevent the transmission of malware or malicious code via the Fovus Solutions.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5(A) ABOVE, THE FOVUS SOLUTIONS, OPEN SOURCE SOFTWARE, THIRD PARTY CONTENT, SUPPORT SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5(A) ABOVE, TO THE FULL EXTENT PERMITTED BY LAW, THE COMPANY AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT USE OF THE FOVUS SOLUTIONS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
SOLE REMEDY. FOR ANY BREACH OF THE WARRANTIES RELATED TO THE FOVUS SOLUTIONS PROVIDED BY THE COMPANY IN SECTION 5(A), CUSTOMER’S EXCLUSIVE REMEDY AND THE COMPANY’S ENTIRE LIABILITY WILL BE THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF THE COMPANY CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, THE COMPANY WILL END THE DEFICIENT SERVICES AND REFUND TO CUSTOMER THE PORTION OF ANY PREPAID SUBSCRIPTION FEES PAID BY CUSTOMER TO THE COMPANY APPLICABLE TO THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
LIMITATION OF LIABILITY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) THE COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “COMPANY ENTITIES”) WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) THE COMPANY ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY FOR THE FOVUS SOLUTIONS IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT THE COMPANY, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE). THE FOREGOING LIMITATIONS WILL NOT APPLY TO (I) CUSTOMER’S PAYMENT OBLIGATIONS, (II) EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS, (III) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (IV) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Indemnification. Customer shall defend the Company and any other Company Entities against any claim, demand, suit or proceeding made or brought against such Company Entity by a third party (a “Claim”) (a) arising from or related to Customer’s or its Authorized User’s use of the Fovus Solutions in violation of any applicable laws, the rights of a third party, this Agreement, any Order, or the Documentation, (b) arising from or related to Customer Content, (c) alleging that any information and/or materials Customer provides to the Company for the Company to perform the services contemplated hereunder or under any Order (the “Customer Materials”) or the use of the Customer Materials in connection with the Fovus Solutions infringes or misappropriates such party’s Intellectual Property Rights, (d) arising from any instructions provided by Customer or its Authorized Users to the Company in connection with such person’s use of the Fovus Solutions, (e) any breach of this Agreement, any Order or the Documentation by Customer or its Authorized Users, or (f) any willful misconduct, negligence, bad faith, or fraud of Customer or its Authorized Users. Customer shall indemnify each such Company Entity from and against any damages, attorney fees, and costs finally awarded against such Company Entity as a result of a Claim, or for amounts paid by such Company Entity under a settlement for such Claim, provided that Customer shall have no obligation to indemnify, defend or hold harmless the Company and any other Company Entities to the extent the claim giving rise to such obligations is the result of gross negligence or willful misconduct of the Company and any other Company Entities.
Company Indemnification. The Company shall defend Customer against any third-party claim alleging that the Fovus Solutions, as provided by the Company and used in accordance with this Agreement, infringe or misappropriate such third party’s Intellectual Property Rights, and shall indemnify Customer for any damages, reasonable attorney fees, and costs finally awarded against Customer as a result of such claim, or amounts paid in settlement approved by the Company, provided that Customer (i) promptly notifies the Company of the claim, (ii) grants the Company sole control of the defense and settlement, and (iii) provides reasonable cooperation at the Company’s expense. The Company shall have no obligation under this Section to the extent the claim arises from Customer Content, Customer Materials, or use of the Fovus Solutions in violation of this Agreement.
Confidential Information.
Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of the Company shall include the non-public elements of the Fovus Solutions.
Use and Disclosure Restrictions. The party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in strict confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees, subcontractors, representatives, and agents (collectively, “Representatives”), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein. Recipient’s obligations under this Section 9 will continue in effect for a period of three (3) years from the date of the last disclosure of Confidential Information by Discloser, except that Customer’s obligations under this Section 9 will continue in effect in perpetuity with respect to trade secrets of the Company.
Exclusions. The obligations of Recipient under Section 9(a) will not apply to any Confidential Information that: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (ii) was known by or lawfully in possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (iii) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
Required Disclosures. The provisions of Section 9(a) will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure in order to enable Discloser to prevent or limit disclosure.
Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 9, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
Government End User Rights. Customer acknowledges that the Fovus Solutions were developed entirely at private expense and that no part of the Fovus Solutions was first produced in the performance of a government contract. Customer agrees that the Fovus Solutions and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. § 2.101, and if Customer is the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Fovus Solutions are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the Fovus Solutions except as expressly agreed to in writing by Customer and the Company.
Term and Termination; Suspension.
Term. This Agreement begins on the Effective Date and remains in effect until terminated in accordance with this Agreement. Each Order remains in effect for its applicable Subscription Term. PAYG access for a Workspace remains active until Customer deactivates PAYG or the Company suspends or terminates PAYG access in accordance with this Agreement. Expiration of an Order will not automatically activate PAYG.
Suspension. The Company may temporarily suspend any or all Workspaces: (i) upon reasonable prior notice where practicable, if the Company reasonably suspects a breach that may cause material harm or risk; (ii) if Customer fails to pay Fees when due; (iii) if a Payment Method required for PAYG is missing, expired, invalid, revoked, or declined; (iv) if a credit purchase, Automatic Recharge, or other authorized payment fails or is reversed; (v) if Customer’s PAYG balance is insufficient or an applicable spending cap is reached; or (vi) if Subscribed Fovus Credits are exhausted and no commitment increase, early renewal, PAYG activation, or authorized overage arrangement is in place. The Company may prevent new workloads and, where reasonably necessary, checkpoint, pause, or terminate queued or running workloads. Suspension does not relieve Customer of payment obligations arising before or during suspension.
Termination. The Company may terminate this Agreement, and/or terminate Customer’s use of the Fovus Solutions and any Workspaces and any applicable Order if Customer breaches this Agreement and fails to cure such breach (if curable) within ten (10) days of receiving written notice thereof.
Effect on Expiration or Termination. Unless otherwise agreed by the parties, upon the expiration or termination of this Agreement, all licenses granted herein or therein will automatically terminate, and Customer will discontinue all use of the Fovus Solutions, return to the Company any materials provided by the Company to Customer, and delete all stored elements of the Fovus Solutions from Customer’s systems. All unpaid Subscription Fees, including unpaid installments of the Annual Commitment, and all other accrued payment obligations will become immediately due upon expiration or termination. The Company may charge Customer’s Payment Method for completed PAYG purchases, payment reversals, chargebacks, or credit deficits arising before termination. Except where required by applicable law, expressly provided in Section 5(c), or expressly provided in an Order, the Company has no obligation to refund Subscription Fees, PAYG Fees, or other amounts received from Customer. Upon termination of this Agreement, all unused Subscribed Fovus Credits and Credit Lots will expire without value and will not be refunded, transferred, rolled over, carried forward, or applied to any future purchase or Subscription Term.
Survival. Section 1, Section 2(b), Section 2(e), Section 2(g), Section 2(l)(iii)–(ix), Section 3(b), Section 3(c), Section 3(d), Section 4, Section 5, Section 6, Section 7, Section 8, Section 9, Section 11(d), Section 11(e), Section 12, and Section 13 will survive any expiration or termination of this Agreement.
Compliance with Laws.
Generally. Customer represents and covenants to the Company that Customer’s use of the Fovus Solutions will comply with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.
Export Controls Laws. The Fovus Solutions may be subject to export controls and trade sanctions laws of the United States and other jurisdictions. Customer acknowledges and agrees that it shall comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses the Fovus Solutions. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer will not export, re-export, ship, transfer, or otherwise use the Fovus Solutions in any country subject to an embargo or other sanction by the United States, and that Customer will not use the Fovus Solutions for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons-related end uses.
Choice of Law and Disputes. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, as if performed wholly within the state and without giving effect to the conflicts of law principles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Maricopa County, Arizona, and the parties hereby consent to personal jurisdiction and venue therein (except that the Company may seek injunctive relief to prevent improper or unauthorized use or disclosure of the non-public elements of the Fovus Solutions in any court of competent jurisdiction).
General.
Purchase Order. Customer’s submission or payment of an Order constitutes acceptance of this Agreement, notwithstanding anything to the contrary in such Order. If any Order contains any terms or conditions that conflict with the terms and conditions set forth in this Agreement, unless such Order expressly overrides a term of this Agreement and is accepted by the Company, then the Company expressly rejects such different or additional terms and conditions, and such different or additional terms and conditions will not become a part of the agreement between the parties absent the Company’s express written consent. An Order is required for the Subscription Model, and Customer may use a purchase order, invoice, or other procurement workflow as permitted in the applicable Order. PAYG does not require an Order or purchase order and is activated and funded digitally within the applicable Workspace. Any purchase order issued by Customer in connection with PAYG is solely for Customer’s administrative convenience and will not modify, condition, reverse, or delay any completed PAYG purchase or enabled Automatic Recharge.
Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed email transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and, in each instance, will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Order or to such other address as may be specified by either party to the other party in accordance with this Section.
Assignment. Customer may not assign, delegate, or transfer this Agreement, in whole or in part, by agreement, operation of law, or otherwise, without the prior written consent of the Company. The Company may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of the Company’s assets to which this Agreement relates. The Company may also assign its rights to receive payment due as a result of the performance of this Agreement to a bank, trust company, or other financing institution. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
Rights and Remedies. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.
Waiver; Severability. The waiver by either party of a breach of or a default under this Agreement will not be effective unless in writing. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Interpretation. For purposes of interpreting this Agreement, (i) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (ii) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (iii) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (iv) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (v) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement; and (vi) the references herein to the parties will refer to their permitted successors and assigns.
Integration; Entire Agreement. This Agreement, along with any additional terms incorporated herein by reference, including any Order(s) or Exhibit(s), constitutes the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications, and understandings, written or oral, relating to their subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice, or any similar document purporting to modify the terms and conditions contained in this Agreement will be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence. Subject to Section 14(a), the order of precedence is: (i) an applicable Order, but only to the extent it expressly overrides this Agreement and is accepted by the Company; (ii) this Agreement; and (iii) the Fovus Hosted Pricing Guide.
Electronic signatures and electronic communications, including email, shall have the same legal effect as handwritten signatures. Orders or renewals accepted electronically by the parties shall be deemed binding as if executed manually.
BYOC Services Agreement
Last Updated: September 1st, 2026
THIS BRING-YOUR-OWN-CLOUD (“BYOC”) SERVICES AGREEMENT (THIS “AGREEMENT”), TOGETHER WITH ANY ORDER THAT REFERENCES IT, GOVERNS CUSTOMER’S USE OF THE FOVUS SOLUTIONS. BY ACCESSING OR USING THE FOVUS SOLUTIONS: (A) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF THE COMPANY, OR OTHER ENTITY FOR WHICH YOU ARE ACTING OR, IF THERE IS NO COMPANY, OR OTHER ENTITY FOR WHICH YOU ARE ACTING, ON BEHALF OF YOURSELF AS AN INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY, OR OTHER ENTITY (IF ANY). THIS AGREEMENT GOVERNS CUSTOMER’S USE OF THE FOVUS SOLUTIONS WHEN DEPLOYED WITHIN A CUSTOMER-OWNED CLOUD ENVIRONMENT PURSUANT TO A BYOC DEPLOYMENT MODEL.
WITHOUT LIMITING THE FOREGOING, YOU (AND YOUR COMPANY OR ENTITY, IF ANY) ACKNOWLEDGE THAT BY SUBMITTING, PAYING FOR, OR AGREEING TO ANY ORDER (OR OTHER ORDERING OR PURCHASING DOCUMENT, SUCH AS AN INVOICE) FOR THE FOVUS SOLUTIONS, YOU (AND YOUR ENTITY (IF ANY)) HAVE AGREED TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY PORTION OF THE FOVUS SOLUTIONS.
This Agreement is entered into by and between Fovus Corporation, a Delaware corporation (the “Company”), and the legal entity identified as the customer in the applicable Order, signature block, or online activation record through which this Agreement is accepted (“Customer”), and is effective as of the Effective Date.
Definitions. Capitalized terms used but not otherwise defined in this Agreement have the meanings as follows:
“Affiliate” of a party means an entity that controls, is controlled by, or is under common control with such party.
“Authorized User” means employees or agents of Customer or its Affiliates selected by Customer to access and use the Fovus Solutions.
“Benchmarking Data” means the data and metadata related to benchmarking generated through the creation of benchmarking profiles, comparative tests, or evaluations within the Fovus Solutions.
“BYOC Deployment” means a deployment model in which the Fovus Solutions are installed, configured, and operated within a Customer Cloud Account, rather than in a cloud environment owned or controlled by the Company.
“Cloud Environment” means a cloud or other compute or storage infrastructure controlled by a party according to context, including Customer Cloud Accounts for BYOC Deployments.
“Cloud Service Provider” means a third-party provider of cloud computing, storage, networking, or related infrastructure services, including but not limited to Amazon Web Services, Microsoft Azure, Google Cloud Platform, or similar providers.
“Customer Cloud Account” means the cloud account(s), subscription(s), project(s), or equivalent constructs owned, controlled, and paid for by Customer with a Cloud Service Provider, into which the Fovus Solutions are deployed and operated in connection with a BYOC Deployment.
“Covered Environment” means the Customer Cloud Accounts, cloud regions, Workspaces, services, tags, and other scope elements identified in the applicable Order or deployment schedule.
“Eligible Workload” means a workload provisioned, orchestrated, executed, scheduled, managed, or optimized through the Fovus Solutions within the Covered Environment and supported by sufficient usage or metering records.
“Managed Cloud Spend” means the eligible cloud infrastructure charges attributable to Eligible Workloads within the Covered Environment, as determined using the applicable Cloud Service Provider’s cost and usage report, another Customer-approved billing export, or another metering methodology identified in the applicable Order or deployment schedule. Unless otherwise stated in the applicable Order or BYOC Pricing Guide, Managed Cloud Spend is measured after applying Customer-owned pricing discounts, including applicable Savings Plans, Reserved Instances, and enterprise or volume discounts, and excludes taxes, support charges, marketplace software charges, provider-issued credits or promotions, refunds, free-tier usage, and cloud usage outside the Covered Environment. Late billing adjustments may be reflected in a subsequent statement or term-end reconciliation. The Company will discuss in good faith any reasonable, documented dispute concerning the calculation of Managed Cloud Spend. The foregoing does not grant Customer access to the Company’s proprietary internal metering or calculation methodologies.
“Customer Content” means all data input into or made available by Customer for processing within the Fovus Solutions or generated from the Fovus Solutions by Customer; provided that Customer Content shall explicitly exclude any Benchmarking Data.
“Customer Data” means the data, other than Customer Instructional Input, made available by Customer and its Authorized Users for processing within the Fovus Solutions. For the avoidance of doubt, Customer Data does not include any Benchmarking Data.
“Customer Instructional Input” means information other than Customer Data that Customer inputs into the Fovus Solutions to direct how the Fovus Solutions process Customer Data, including, without limitation, the code and any libraries (including third-party libraries) Customer utilizes within the Fovus Solutions.
“Customer Results” means any output Customer or its Authorized Users generate from their use of the Fovus Solutions; provided that Customer Results shall explicitly exclude any Benchmarking Data.
“Disabled Materials” means certain materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with the Fovus Solutions as part of the delivery mechanism used by the Company, but that are disabled or hidden in Customer’s setting, because Customer either: (a) does not have the applicable license rights under this Agreement, or (b) has not paid the applicable Platform Fees, for those materials.
“Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation in connection with the Fovus Solutions provided by the Company to Customer together with access to the Fovus Solutions, including, without limitation, the Documentation and Articles available at [Fovus Serverless HPC Platform Help Center].
“Effective Date” means the earliest of (i) the effective date of the initial Order that references this Agreement, (ii) the date of last signature or electronic acceptance of this Agreement, or (iii) the date Customer first accesses or uses the Fovus Solutions.
“Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to the Company in connection with the Fovus Solutions. Feedback does not include any data, results or output created or generated by Customer using the Fovus Solutions, unless specifically submitted or communicated by Customer to the Company as part of the Feedback.
“Fovus Solutions” means the Fovus proprietary software, tools, services, and related components made available by the Company in connection with a BYOC Deployment, including without limitation: (a) the core Fovus platform; (b) any command line interfaces, application programming interfaces (APIs), software development kits (SDKs), plugins, connectors, adapters, schedulers, or workflow integration components that enable interoperability with third-party software, workflows, or systems; and (c) any updates, enhancements, or modifications thereto, as more fully described in the applicable Documentation. Except for Company-managed benchmarking expressly authorized under Section 3(c)(iv), the Fovus Solutions are deployed and operated within the Customer Cloud Account in connection with a BYOC Deployment.
“Government” means an agency, department, or instrumentality of the United States government.
“Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
“Internal Business Purpose” means Customer’s and its Affiliates’ use for its own business operations on Customer’s and its Affiliates’ systems, networks and devices with Customer’s data.
“Order” means an order form, statement of work, accepted quote, confirming invoice, or other ordering document accepted by the parties that specifies commercial terms applicable to Customer’s BYOC Deployment, which may include the Subscription Term, Covered Environment, Annual Platform Credit Commitment, Platform Fees, pricing rates or methodology, applicable discounts, billing schedule, payment terms, renewal terms, implementation or support fees, and a reference to or copy of the applicable BYOC Pricing Guide. A binding purchase order that references an accepted Company quote may constitute an Order to the extent stated in such quote.
“Platform Credits” means units made available pursuant to a binding Annual Platform Credit Commitment or approved Commitment Increase and applied solely against Platform Fees as they accrue, whether the applicable commitment is invoiced upfront or under another billing schedule stated in the Order. One Platform Credit offsets one dollar of accrued Platform Fees, unless otherwise stated in the applicable Order. Platform Credits do not pay, reimburse, or offset cloud infrastructure charges, Variable Cost Recovery Charges, pass-through charges, taxes, professional services, implementation fees, support fees, or other separately stated amounts.
“Annual Platform Credit Commitment” means the binding amount of Platform Credits committed by Customer for a Subscription Term or contract year, as specified in the applicable Order.
“Annual Prepayment Discount” means any discount specified in the applicable Order or BYOC Pricing Guide for an eligible Annual Platform Credit Commitment invoiced on an annual upfront basis. An Annual Prepayment Discount affects the amount payable for the applicable Platform Credits and does not modify the platform-fee rates used to calculate Platform Fees.
“Commitment Increase” means an increase to Customer’s Annual Platform Credit Commitment during a Subscription Term pursuant to an amendment or additional Order accepted by the parties.
“True-Up” means the invoicing of Platform Fees attributable to incremental Managed Cloud Spend incurred after Customer’s available Platform Credits have been exhausted, calculated in accordance with the applicable Order and BYOC Pricing Guide.
“BYOC Pricing Guide” means the standard, non-public, versioned Fovus BYOC Pricing Guide identified by title and version date in the applicable Order. Customer-specific rates, commitments, discounts, caps, Covered Environment, and other negotiated exceptions will be stated in the applicable Order or a customer-specific pricing schedule attached to, or expressly referenced in and incorporated by, that Order (a “Customer-Specific Pricing Schedule”). The applicable Order may provide a secure electronic link to the BYOC Pricing Guide for convenience. The version identified in the Order will control regardless of any subsequent change to the linked document, unless the parties agree otherwise in writing.
“Shared Data” means (i) Customer Content that Customer elects to share with third parties or (ii) data Customer elects to receive from third parties, under an applicable configuration of the Fovus Solutions.
“Subscription Term” means the service period stated in the applicable Order, which is ordinarily an annual period but may be a longer or multi-year period as specified in the Order. “Subscription Term” includes any “Service Term” used in the applicable BYOC Pricing Guide. For a multi-year Order, each contract year may have a separate Annual Platform Credit Commitment and Platform Credit pool, as specified in the Order.
“Usage Data” means operational, technical, performance, configuration, and telemetry data relating to Customer’s use of the Fovus Solutions, including resource-consumption metrics and queries entered by Authorized Users, but excluding Customer Content, Customer Data, Customer Results, raw Cloud Service Provider billing records, Customer Cloud Account credentials, and secrets.
“Workspace” means a Fovus Solutions environment. For BYOC Deployments, references to “Workspace” mean the logical deployment of the Fovus Solutions within the Customer Cloud Account and do not imply Company ownership or control of Customer infrastructure or data.
Commercial Terms.
General. Customer may license and use the Fovus Solutions for a BYOC Deployment by entering into an Order and paying all applicable amounts in accordance with the Order and this Agreement. The Order will identify the applicable commercial terms, which may include the Covered Environment, Subscription Term, Annual Platform Credit Commitment, applicable rates and discounts, billing schedule, payment terms, renewal terms, and any implementation, support, capacity, professional-services, or other separately stated fees.
BYOC Platform Fees. Customer shall pay the platform fees calculated in accordance with the applicable Order and BYOC Pricing Guide (the “Platform Fees”). Unless otherwise stated in the Order, Platform Fees are calculated by applying the applicable progressive marginal rates to cumulative Managed Cloud Spend incurred during the applicable Subscription Term. Each marginal rate applies only to the incremental Managed Cloud Spend within the corresponding band. Covered Workspaces and Customer Cloud Accounts under the same Order will be aggregated for pricing-tier and Platform Credit purposes unless the Order expressly provides otherwise. Platform Fees may be subject to a maximum fee, spend ceiling, threshold, alternative rate, or other negotiated pricing treatment specified in the applicable Order or BYOC Pricing Guide. If the applicable commercial terms permit the Company to recover actual variable control-plane or similar infrastructure costs above a specified threshold (“Variable Cost Recovery Charges”), such charges will be calculated and invoiced in accordance with the applicable Order and BYOC Pricing Guide. Platform Credits apply only to Platform Fees and do not apply to Variable Cost Recovery Charges or other pass-through charges unless expressly stated in the Order. Customer acknowledges that all charges imposed by the applicable Cloud Service Provider—including compute, storage, networking, data transfer, taxes, support, marketplace, and other infrastructure charges—are billed directly to Customer and remain solely Customer’s responsibility. The Company does not resell or collect such cloud infrastructure charges and does not act as a reseller, agent, or representative of the Cloud Service Provider.
Support-Related Infrastructure Usage. Customer acknowledges that, in the course of providing technical support, troubleshooting, validation, or issue reproduction, authorized Company personnel may access the Customer Workspace and execute workloads through the Fovus Solutions using substantially the same environment and configuration as Customer. Any cloud infrastructure resources consumed as a result of such activities are provisioned within the Customer Cloud Account and billed directly by the applicable Cloud Service Provider to Customer. Such activities do not constitute a separate support fee and are performed solely to support Customer’s use of the Fovus Solutions.
Customer-Requested Benchmarking Infrastructure Usage. If Customer requests, and the Company agrees in writing, that benchmarking, performance testing, calibration, validation, or related workload evaluation be conducted within a Customer Cloud Account rather than a Company-managed Cloud Environment permitted under Section 3(c)(iv), all cloud infrastructure resources consumed in connection with such activities will be provisioned within the Customer Cloud Account and billed directly by the applicable Cloud Service Provider to Customer. Customer is solely responsible for all resulting compute, storage, networking, data-transfer, reservation, support, marketplace, tax, and other Cloud Service Provider charges, including charges arising from benchmark repetitions reasonably necessary to complete or validate the applicable benchmarking activity. Such infrastructure charges are separate from amounts payable to the Company, are not Platform Fees, and may not be paid or offset using Platform Credits unless the applicable Order expressly states otherwise. The Company will have no obligation to perform benchmarking within the Customer Cloud Account unless the arrangement is stated in the applicable Order or deployment schedule, or otherwise agreed in writing, and Customer provides the access, permissions, data, and infrastructure reasonably required for such activities. For clarity, to the extent such benchmarking constitutes an Eligible Workload within the Covered Environment, the resulting Cloud Service Provider charges are included in Managed Cloud Spend and may generate Platform Fees under Section 2(b).
Applicable BYOC Pricing Guide. The BYOC Pricing Guide establishes the standard commercial structure and pricing mechanics applicable to BYOC Deployments. The applicable Order will identify the version of the BYOC Pricing Guide governing that Order and may modify its rates, commitments, discounts, thresholds, caps, or other commercial terms. A subsequently issued BYOC Pricing Guide will not replace the version applicable to an existing Order during its Subscription Term unless the parties agree otherwise in writing. If there is a conflict among the applicable documents, the following order of precedence applies: (a) the applicable Order, including any expressly negotiated amendment or addendum; (b) any Customer-Specific Pricing Schedule expressly incorporated into that Order; (c) this Agreement; and (d) the applicable BYOC Pricing Guide. If the Order and an incorporated Customer-Specific Pricing Schedule conflict, the Order controls.
Annual Platform Credit Commitment. Customer shall purchase the Annual Platform Credit Commitment specified in the applicable Order. The Annual Platform Credit Commitment is binding, non-cancellable, and non-refundable for the applicable Subscription Term, except as expressly provided in this Agreement, the applicable Order, or applicable law. The Order may require full annual prepayment or establish another negotiated billing schedule. An installment or quarterly billing schedule affects only the timing of invoices and payments and does not reduce, cancel, or make optional any portion of the Annual Platform Credit Commitment. Subject to acceptance of this Agreement and the applicable Order, the Company may activate the BYOC Deployment and make the committed Platform Credits available upon receipt of an executed Order or a binding purchase order referencing an accepted Company quote, without waiting for payment of the corresponding invoice. Customer’s payment obligations remain subject to the payment terms stated in the applicable Order. Any Annual Prepayment Discount stated in the applicable Order or BYOC Pricing Guide applies as provided in that document. Unless the applicable Order expressly states otherwise, quarterly or other installment billing does not qualify for an Annual Prepayment Discount.
Platform Credit Application and Expiration. Platform Credits are applied automatically as Platform Fees accrue. The Company will make available monthly statements showing, as applicable, Managed Cloud Spend, accrued Platform Fees, Platform Credits applied, True-Up amounts, and the remaining Platform Credit balance. Unless otherwise stated in the applicable Order, Platform Credits associated with an Annual Platform Credit Commitment expire at the end of the applicable Subscription Term or contract year and do not roll over, reduce a future commitment, convert into cash, or create a refund or account credit. Platform Credits may be used across Covered Workspaces under the same Customer legal entity and Order, subject to the scope stated in the Order and the Company’s reasonable administrative controls. Platform Credits may not be resold or transferred to another legal entity without the Company’s prior written approval.
Commitment Increases; Early Renewal; True-Ups. Customer may increase its Annual Platform Credit Commitment during a Subscription Term through a Commitment Increase documented in an amendment or additional Order. The amount, price, discount, billing treatment, and any minimum applicable to a Commitment Increase will be stated in the applicable amendment, Order, or BYOC Pricing Guide. Unless otherwise agreed in writing, Platform Credits issued through a Commitment Increase are available when the increase becomes effective, expire on the existing renewal date, and do not extend or restart the Subscription Term. For a material expansion, particularly late in the Subscription Term, the parties may agree to an early renewal in place of a Commitment Increase. Unless otherwise stated in the applicable renewal Order, an early renewal requires a new Annual Platform Credit Commitment greater than the annualized commitment then in effect. The new Subscription Term and Platform Credit pool begin on the date stated in the renewal Order, and any unused Platform Credits from the replaced Subscription Term expire on that date. If Customer exhausts its available Platform Credits before a Commitment Increase or early renewal becomes effective, Eligible Workloads may continue to operate, subject to Customer’s account remaining in good standing and the Company’s suspension rights. Platform Fees attributable to incremental Managed Cloud Spend incurred after credit exhaustion will be invoiced monthly in arrears as True-Ups in accordance with the applicable Order and BYOC Pricing Guide. True-Up usage is not eligible for an Annual Prepayment Discount or Commitment Increase discount unless the applicable Order expressly provides otherwise. Previously settled statements will not be retroactively repriced unless the applicable Order expressly provides otherwise.
Billing and Payment. The Company will issue invoices according to the billing schedule stated in the applicable Order. Unless otherwise stated in the Order, invoiced amounts are due within thirty (30) days after the invoice date. If no purchase order is required, Customer may authorize activation and accept the applicable governing terms through an accepted quote, invoice, or electronic workflow. Taxes and separately stated implementation, setup, professional-services, support, SLA, capacity, Variable Cost Recovery, and other pass-through charges are additional and are not payable using Platform Credits unless the applicable Order expressly provides otherwise. Except for amounts disputed reasonably and in good faith, Customer may not offset or withhold amounts payable under an Order.
License Grant. Subject to Customer’s timely payment of all undisputed amounts due under the applicable Order and full compliance with this Agreement, the Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Fovus Solutions solely in connection with the applicable BYOC Deployment for Customer’s Internal Business Purposes during the Subscription Term.
Cancellation and Non-Renewal. Either party may prevent automatic renewal by providing written notice no later than the renewal-notice deadline specified in the applicable Order or, if the Order does not specify a deadline, the deadline stated in the applicable BYOC Pricing Guide (the “Renewal-Notice Deadline”). A notice of non-renewal becomes effective at the end of the then-current Subscription Term. Non-renewal does not terminate or reduce the current Subscription Term or Annual Platform Credit Commitment, excuse any unpaid amount, or create a refund. Subject to this Agreement, Customer may continue using available Platform Credits through the end of the then-current Subscription Term, after which unused Platform Credits expire. Termination before the end of a Subscription Term is permitted only as expressly provided in this Agreement or the applicable Order.
Automatic Renewal; Renewal Commitment. Unless otherwise stated in the applicable Order, the Subscription Term will automatically renew for successive twelve (12)-month periods unless either party provides timely written notice of non-renewal by the Renewal-Notice Deadline. For a multi-year Order, renewal occurs only after completion of the full multi-year Subscription Term unless the Order states otherwise. Unless otherwise stated in a renewal Order, the renewed Annual Platform Credit Commitment will be based on the annualized commitment in effect immediately before renewal, including any approved Commitment Increases. The billing schedule in effect immediately before renewal will continue unless amended for the renewal term. Prior-term Platform Credits expire at the end of the applicable Subscription Term or contract year, and the renewed term begins with a new Platform Credit balance.
Annual Commitment Decrease. Customer may request a lower Annual Platform Credit Commitment for a future renewal term by providing written notice no later than the Renewal-Notice Deadline. A decrease is effective only if accepted by the Company and documented in the applicable renewal Order. A requested decrease does not apply during the current Subscription Term, reduce the current Annual Platform Credit Commitment, extend the validity of existing Platform Credits, or create a refund or credit. The renewal Order will state the reduced commitment and applicable pricing. Rates, discounts, capacity arrangements, and other commercial terms associated with the prior commitment do not automatically carry forward. A decrease request alone does not modify the renewal commitment. If the parties do not agree upon and document the decrease, the existing renewal terms will continue unless either party separately provides a timely notice of non-renewal.
Multi-Year Orders. An Order may establish a multi-year Subscription Term and may specify annual or other periodic Platform Credit Commitments, a commitment ramp, billing schedule, applicable rates and discounts, price protections, capacity arrangements, and treatment of provider-driven or pass-through costs. A multi-year Subscription Term does not create any discount unless expressly stated in the Order. Unless the Order states otherwise, each contract year has a separate Platform Credit pool, and unused Platform Credits expire at the end of the applicable contract year without carrying into the next contract year.
BYOC Setup Fee and Separately Quoted Services. The applicable Order may include a one-time BYOC setup fee for initial Workspace design, configuration, deployment, and agreed customization required to align the BYOC Deployment with Customer’s security, data-governance, networking, compliance, identity, and access-management requirements. The applicable scope, assumptions, deliverables, fee, and payment terms will be stated in the Order. Any BYOC setup fee is separate from the Annual Platform Credit Commitment and does not offset Platform Fees unless the Order expressly states otherwise. Unless expressly included in the applicable Order, custom deployment work, migration, custom integrations, premium support, service-level commitments, reserved-capacity arrangements, benchmarking deliverables, training, and professional services will be separately scoped and priced.
BYOC Responsibilities. Customer acknowledges that BYOC Deployments operate under a shared responsibility model, pursuant to which Customer retains responsibility for its Cloud Service Provider environment and the Company retains responsibility solely for the Fovus Solutions. In connection with any BYOC Deployment, Customer is solely responsible for:
provisioning, configuring, securing, and maintaining its Customer Cloud Account;
compliance with all applicable Cloud Service Provider terms and policies;
identity and access management, networking, security controls, and monitoring;
payment of all Cloud Service Provider charges; and
granting the Company only those permissions reasonably necessary to deploy and operate the Fovus Solutions.
granting the Company and its authorized personnel access, permissions, and roles reasonably necessary to provide support, troubleshooting, validation, and issue reproduction services within the Customer Workspace, subject to the shared responsibility model applicable to BYOC Deployments.
providing the Company with the billing exports, tags, account mappings, permissions, and other records reasonably required to measure and reconcile Managed Cloud Spend within the Covered Environment.
Customer Responsibilities.
General. Customer hereby agrees and covenants that Customer shall be responsible for:
ensuring that each Authorized User has its/his/her own credentials, protecting those credentials, and not permitting any sharing of credentials;
securing the Customer Cloud Account and any Customer systems;
backing up Customer Content; Customer acknowledges that the Company does not provide backup or disaster recovery services for Customer Content in connection with BYOC Deployments.
configuring the Fovus Solutions in an appropriate way, taking into account the sensitivity of the Customer Content that the Customer chooses to process using the Fovus Solutions, including Shared Data;
providing such information, and/or access to Customer’s resources and personnel as the Company may reasonably require for providing services in connection with the Fovus Solutions, including, without limitation, providing remote system access (upon mutual agreement) for the Company to replicate potential errors and provide embedded diagnostic information;
using commercially reasonable efforts to ensure that its Authorized Users review the portions of Documentation relevant to its/his/her use of the Fovus Solutions and any security information published by the Company and referenced therein that is designed to assist Customer in securing Customer Content; and
all risks associated with all use of the Fovus Solutions by an Authorized User under such Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not taken by the Company or by a party acting under the direction of the Company.
Use Restrictions. Customer shall not, and shall not permit its Authorized Users to:
copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Fovus Solutions, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by the Agreement or by law notwithstanding this prohibition;
sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Fovus Solutions to any third party except that Customer may sublicense or otherwise provide access to the Fovus Solutions to its Affiliates or to the extent explicitly authorized in writing by the Company;
use the Fovus Solutions to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any product or service of the Company;
transfer or assign any of Customer’s rights hereunder except as permitted under Section 13(c);
access or use any Disabled Materials;
provide to any third party any Benchmarking Data or the results of any evaluation of the Fovus Solutions without the Company’s prior written consent;
attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit, or control the use or copying of, or access to, the Fovus Solutions (including in order to gain access to any Disabled Materials);
remove or obscure any copyright, trademark, patent, or other proprietary notices, legends, or symbols from the Fovus Solutions;
violate the scope of use, Subscription Term, or other license restrictions expressly set forth in this Agreement or the applicable Order;
separately use any of the applicable features and functionalities of the Fovus Solutions with external applications or code not furnished by the Company;
use the Fovus Solutions to violate the security or integrity of, or otherwise abuse, any system of any party, including but not limited to gaining unauthorized access to any system (including attempting to probe, scan, monitor, or test the vulnerability of a system), forging any headers or other parts of any message describing its origin or routing, interfering with the proper functioning of any system (including any deliberate attempt by any means to overload a system), implementing denial-of-service attacks, operating non-permissioned network services (including open proxies, mail relays or recursive domain name servers), using any means to bypass license enforcement or payment-related usage limitations, or storing, transmitting or installing malicious code;
use the Fovus Solutions to distribute or facilitate the sending of unsolicited or unlawful emails or other messages, or promotions of any kind;
use the Fovus Solutions to engage in or promote any other fraudulent, deceptive, or illegal activities;
use the Fovus Solutions to process, store or transmit material, including any Customer Data, in violation of any applicable laws or any third-party rights, including without limitation privacy rights;
otherwise access or use the Fovus Solutions except as expressly authorized in this Agreement; or
encourage or assist any third party in doing any of the foregoing.
Customer acknowledges that the Fovus Solutions may be configured to display warnings, reduce functionality, or cease operation if unauthorized or improper use is detected or if the Subscription Term has expired.
Customer Content.
Customer agrees that Customer shall not include in Customer Content, or generate any Customer Results or any Benchmarking Data that include, any data for which Customer does not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement.
Customer shall not include in Customer Content any personal information unless Customer has entered into a data processing addendum or similar data processing agreement with the Company (the “DPA”). Such DPA, if any, shall be incorporated by reference herein in its entirety. If Customer has not entered into any DPA with the Company or if Customer provides personal information to the Company in violation of the relevant DPA, the Company shall have no liability hereunder relating to such personal information notwithstanding anything in this Agreement or in any applicable laws to the contrary. Fovus will maintain industry-standard administrative, technical, and organizational safeguards designed to protect the security, confidentiality, and integrity of Customer Content, consistent with SOC 2 Type II or equivalent standards. For BYOC Deployments, the Company acts solely as a provider of software and does not act as a data processor with respect to Customer Content unless expressly agreed in a separate DPA.
To the extent that Customer uses any internal software of its own, commercial software and/or other third-party licenses (collectively, “Customer’s Licenses”) in connection with its use of the Fovus Services, Customer grants the Company a limited, non-exclusive right to use such Customer’s Licenses solely as necessary to provide the Fovus Solutions to Customer in accordance with this Agreement. In the event that any of the Customer’s Licenses provided by a third party other than Customer does not allow the Company’s use or access in accordance with the foregoing sentence, Customer shall promptly notify the Company in writing and use its best efforts to negotiate with such third party for the Company’s use or access in accordance with the foregoing sentence.
Except as expressly provided below for Company-managed benchmarking, Customer Content processed in connection with a BYOC Deployment will be processed and stored within the Customer Cloud Account. Benchmarking may be performed either: (A) fully within the Customer Cloud Account, if requested by Customer and agreed to by the Company in writing; or (B) within a Company-managed Cloud Environment, if identified in the applicable Order or deployment schedule or otherwise expressly authorized by Customer in writing. If benchmarking is performed within the Customer Cloud Account, the applicable benchmarking workloads and Customer Content will be processed and stored within that Customer Cloud Account under Customer-approved access and permissions, and Customer will be responsible for the resulting cloud infrastructure charges in accordance with Section 2(d). If benchmarking is performed within a Company-managed Cloud Environment, only Customer Content specifically designated or provided by Customer for benchmarking may be processed there, and only for the authorized benchmarking activities. The Company will protect such Customer Content in accordance with this Agreement and any applicable DPA and will delete or return it promptly following completion of the authorized benchmarking activities, except as required by applicable law or otherwise agreed in writing. This deletion or return obligation does not limit the Company’s rights in Usage Data or Benchmarking Data under Section 4(c), provided that such Usage Data or Benchmarking Data does not include Customer Content. Except as expressly authorized under this subsection, the Company will not host or persist Customer Content outside the Customer Cloud Account.
Services Updates. The Company provides the Fovus Solutions according to different architectural models, depending on the specific features being used by Customer, as further described in the Documentation. Therefore, Customer hereby acknowledges and agrees that different portions of the Fovus Solutions are and may in the future be subject to changes reflected in the Documentation or terms and conditions that provide for different rights and responsibilities of the parties for their use. Except for Company-managed benchmarking expressly authorized under Section 3(c)(iv), all such architectural variations for purposes of this Agreement operate within the Customer Cloud Account in connection with a BYOC Deployment.
Ownership.
General. The Company, its suppliers, and/or licensors own all worldwide right, title and interest in and to the Fovus Solutions, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 2(j), Customer will not acquire or claim any right, title, or interest in or to the Fovus Solutions or related Intellectual Property Rights, whether by implication, operation of law, or otherwise. Notwithstanding anything to the contrary, the Fovus Solutions are licensed, not sold, to Customer pursuant to the terms hereof.
Ownership of Customer Content. As between the Company and Customer, Customer retains all ownership or license rights in Customer Content.
Usage Data and Benchmarking Data. Notwithstanding anything contained in this Agreement to the contrary, the Company may collect and use Usage Data and/or Benchmarking Data to develop, improve, operate, and support its products, services, and Benchmarking Data (the “Purpose”). As between the Company and Customer, the Company retains all ownership or license rights in the Usage Data and Benchmarking Data. To the extent that Customer retains any of the rights, title and interest in and to any Usage Data and Benchmarking Data that cannot be assigned by Customer to the Company, Customer hereby grants to the Company an exclusive, royalty-free, sublicensable, irrevocable, worldwide license (as necessary to perform or improve the Fovus Solutions) to use such data solely in aggregated and anonymized form for the purpose of developing, improving, operating, and supporting the Fovus Solutions. The Company agrees not to share any Usage Data and/or Benchmarking Data that includes the Confidential Information of Customer except either (i) to the extent that such Usage Data and/or Benchmarking Data is anonymized and aggregated such that it does not identify Customer or the Confidential Information of Customer; or (ii) in accordance with Section 8 of this Agreement. Such Usage Data and Benchmarking Data will be subject to the Company’s Privacy Policy available at [Privacy Policy], which policy is hereby incorporated by reference and made a part of this Agreement. For BYOC Deployments, Usage Data does not include Customer Cloud Account credentials, secrets, or raw Cloud Service Provider billing records. For the avoidance of doubt, the Company will not use Customer Results to develop products or services that directly compete with Customer’s core business. The Company will not attempt to re-identify Customer from anonymized or aggregated Usage Data or Benchmarking Data.
Publicity. Unless Customer notifies the Company in writing of an objection, the Company may identify Customer by name and logo as a user of the Fovus Solutions on the Company’s website, in client lists, and in marketing or sales materials, without separate notice or approval, provided that such use is factual and does not include any Confidential Information or imply endorsement. The Company may publish case studies, quotes, or testimonials from Customer only with Customer’s prior written approval (email sufficient) for the specific content to be used. Customer’s approval shall not be unreasonably withheld or delayed.
Warranties; Warranty Disclaimer; Remedies.
Warranties. Each party represents and warrants that it has the requisite corporate power and authority to enter into this Agreement and the applicable Order and to consummate the transactions contemplated by this Agreement or by any such Order. The Company further warrants that, during any Subscription Term, it will provide the Fovus Solutions in a professional and workmanlike manner in accordance with the Documentation and will employ commercially reasonable efforts consistent with industry standards to prevent the transmission of malware or malicious code via the Fovus Solutions. The Company does not warrant, and shall have no responsibility for, the availability, performance, or security of any Cloud Service Provider services or Customer Cloud Account used in connection with a BYOC Deployment. Customer acknowledges that the Company is not a Cloud Service Provider and is not responsible for any outages, interruptions, data loss, or security incidents arising from the Cloud Service Provider or the Customer Cloud Account. The parties acknowledge that this Agreement applies solely to BYOC Deployments and does not govern any Company-hosted or software-as-a-service offerings of the Company. For clarity, Company-managed benchmarking expressly authorized under Section 3(c)(iv) is an ancillary activity under a BYOC Deployment and remains governed by this Agreement; it does not convert the BYOC Deployment into a Company-hosted or software-as-a-service offering.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5(A) ABOVE, THE FOVUS SOLUTIONS, OPEN SOURCE SOFTWARE, THIRD PARTY CONTENT, SUPPORT SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5(A) ABOVE, TO THE FULL EXTENT PERMITTED BY LAW, THE COMPANY AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT USE OF THE FOVUS SOLUTIONS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
SOLE REMEDY. FOR ANY BREACH OF THE WARRANTIES RELATED TO THE FOVUS SOLUTIONS PROVIDED BY THE COMPANY IN SECTION 5(A), CUSTOMER’S EXCLUSIVE REMEDY AND THE COMPANY’S ENTIRE LIABILITY SHALL BE THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OR, IF THE COMPANY CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY TERMINATE THE AFFECTED ORDER IN ACCORDANCE WITH SECTION 10(C). UPON SUCH TERMINATION, THE COMPANY WILL REFUND ANY AMOUNTS ACTUALLY PREPAID AND ALLOCABLE TO UNUSED PLATFORM CREDITS, AFTER APPLICATION OF THE DISCOUNTS STATED IN THE ORDER, AND CUSTOMER WILL HAVE NO OBLIGATION TO PAY INSTALLMENTS THAT BECOME DUE AFTER THE EFFECTIVE DATE OF TERMINATION. EXCEPT AS PROVIDED IN THIS PARAGRAPH OR AN APPLICABLE ORDER, THE COMPANY SHALL HAVE NO OBLIGATION TO ISSUE REFUNDS.
LIMITATION OF LIABILITY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) THE COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “COMPANY ENTITIES”) WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) THE COMPANY ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY UNDER THE AFFECTED ORDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT THE COMPANY, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE). THE FOREGOING LIMITATIONS WILL NOT APPLY TO (I) CUSTOMER’S PAYMENT OBLIGATIONS, (II) EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS, (III) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (IV) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Indemnification. Customer shall defend the Company and any other Company Entities against any claim, demand, suit or proceeding made or brought against such Company Entity by a third party (a “Claim”) (a) arising from or related to Customer’s or its Authorized User’s use of the Fovus Solutions in violation of any applicable laws, the rights of a third party, this Agreement, any Order, or the Documentation, (b) arising from or related to Customer Content, (c) alleging that any information and/or materials Customer provides to the Company for the Company to perform the services contemplated hereunder or under any Order (the “Customer Materials”) or the use of the Customer Materials in connection with the Fovus Solutions infringes or misappropriates such party’s Intellectual Property Rights, (d) arising from any instructions provided by Customer or its Authorized Users to the Company in connection with such person’s use of the Fovus Solutions, (e) any breach of this Agreement, any Order or the Documentation by Customer or its Authorized Users, or (f) any willful misconducts, negligence, bad faith and fraud of Customer or its Authorized Users. Customer shall indemnify each such Company Entity from and against any damages, attorney fees, and costs finally awarded against such Company Entity as a result of a Claim, or for amounts paid by such Company Entity under a settlement for such Claim, provided that Customer shall have no obligation to indemnify, defend or hold harmless the Company and any other Company Entities to the extent the claim giving rise to such obligations is the result of gross negligence or willful misconduct of the Company and any other Company Entities.
Confidential Information.
Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, Confidential Information of the Company includes the non-public elements of the Fovus Solutions, the BYOC Pricing Guide, the Company’s non-public pricing methodologies, rates, discount structures, platform-fee calculations, and related commercial information. The non-public commercial terms of any Order and any Customer-Specific Pricing Schedule attached to or incorporated into an Order will constitute Confidential Information of both parties.
Use and Disclosure Restrictions. The party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in strict confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees, subcontractors, representatives, and agents (collectively, “Representatives”), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein. Recipient’s obligations under this Section 8 will continue in effect for a period of three (3) years from the date of the last disclosure of Confidential Information by Discloser, except that Customer’s obligations under this Section 8 will continue in effect in perpetuity with respect to trade secrets of the Company.
Exclusions. The obligations of Recipient under Section 8(b) will not apply to any Confidential Information that: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (ii) was known by or lawfully in possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (iii) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
Required Disclosures. The provisions of Section 8(b) will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure in order to enable Discloser to prevent or limit disclosure.
Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 8, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
Government End User Rights. Customer acknowledges that the Fovus Solutions were developed entirely at private expense and that no part of the Fovus Solutions was first produced in the performance of a government contract. Customer agrees that the Fovus Solutions and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. § 2.101, and if Customer is the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Fovus Solutions are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the Fovus Solutions except as expressly agreed to in writing by Customer and the Company.
Term and Termination; Suspension.
Term. This Agreement commences on the Effective Date and remains in effect for so long as any Order remains in effect, unless earlier terminated in accordance with this Section 10. Expiration or non-renewal of one Order does not terminate this Agreement or any other Order then in effect. Each Order remains in effect for its applicable Subscription Term, including following a notice of non-renewal through the end of the then-current Subscription Term.
Suspension. The Company may temporarily suspend Customer’s access to or operation of the Fovus Solutions within the applicable Workspaces at any time (i) upon reasonable prior notice where practicable if the Company reasonably suspects that Customer or any of its Authorized Users has breached their obligations under this Agreement in a manner that may cause material harm or material risk of harm to the Company or to any other party, or (ii) if Customer fails to pay any undisputed amount when due under an applicable Order and does not cure such failure within ten (10) days after written notice.
Termination. Either party may terminate this Agreement or an affected Order if the other party materially breaches this Agreement or such Order and fails to cure the breach within thirty (30) days after receiving written notice; provided that the cure period for Customer’s failure to pay an undisputed amount when due will be ten (10) days after written notice. The Company may terminate immediately if Customer’s breach is not capable of cure or if continued provision of the Fovus Solutions would violate applicable law.
Effect on Expiration or Termination (BYOC Deployments). Upon expiration or termination of this Agreement, or of an applicable Order with respect to the BYOC Deployment covered by that Order: (a) all licenses granted under this Agreement, or the licenses granted under the affected Order, as applicable, shall terminate; (b) the Company shall cease providing access to and support for the Fovus Solutions under this Agreement or the affected Order, as applicable; (c) Customer shall be responsible for disabling or removing the Fovus Solutions associated with each affected BYOC Deployment from the applicable Customer Cloud Account; and (d) Customer shall retain sole responsibility for the retention, export, or deletion of all Customer Content stored within each affected Customer Cloud Account. The Company shall have no obligation to host, retain, retrieve, or delete Customer Content following termination, except that Customer Content processed in a Company-managed Cloud Environment for benchmarking will be deleted or returned in accordance with Section 3(c)(iv). Customer remains responsible for all cloud infrastructure resources, reservations, commitments, and charges within the Customer Cloud Account. Expiration, termination, or suspension does not relieve Customer of any payment obligation accrued or committed before the applicable effective date, except where Customer terminates an affected Order for the Company’s uncured material breach or as otherwise expressly stated in the applicable Order. Except for a refund expressly required under Section 5(c) or provided in the applicable Order, unused Platform Credits expire upon termination and will not be refunded.
Survival. All provisions that by their nature should survive termination or expiration of this Agreement shall survive, including without limitation payment obligations, confidentiality obligations, intellectual property provisions, limitation of liability, indemnification, data responsibility provisions, and governing law.
Compliance with Laws.
Generally. Customer represents and covenants to the Company that Customer’s use of the Fovus Solutions will comply with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.
Export Controls Laws. The Fovus Solutions may be subject to export controls and trade sanctions laws of the United States and other jurisdictions. Customer acknowledges and agrees that it shall comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses the Fovus Solutions. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer will not export, re-export, ship, transfer, or otherwise use the Fovus Solutions in any country subject to an embargo or other sanction by the United States, and that Customer will not use the Fovus Solutions for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons-related end uses.
Choice of Law and Disputes. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, as if performed wholly within the state and without giving effect to the conflicts of law principles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Maricopa County, Arizona, and the parties hereby consent to personal jurisdiction and venue therein (except that the Company may seek injunctive relief to prevent improper or unauthorized use or disclosure of the non-public elements of the Fovus Solutions in any court of competent jurisdiction).
General.
Purchase Orders; Order Precedence. Customer’s execution, submission, or payment of an Order, or issuance of a binding purchase order referencing an accepted Company quote, constitutes acceptance of the applicable commercial terms and this Agreement to the extent stated in the applicable ordering document. Any preprinted or standard terms included in a Customer purchase order, procurement portal, vendor form, or similar document are rejected and will not modify this Agreement unless expressly accepted in writing by an authorized representative of the Company. If an accepted Order expressly identifies a provision of this Agreement that it modifies, the Order will control with respect to that provision and that Order. Otherwise, this Agreement will control. The applicable BYOC Pricing Guide will govern pricing calculations and mechanics not addressed in the Order or this Agreement. Cloud infrastructure charges remain governed solely by Customer’s agreement with the applicable Cloud Service Provider.
Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed email transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and, in each instance, will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Order or to such other address as may be specified by either party to the other party in accordance with this Section.
Assignment. Customer may not assign, delegate, or transfer this Agreement, in whole or in part, by agreement, operation of law, or otherwise, without the prior written consent of the Company. The Company may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of the Company’s assets to which this Agreement relates. The Company may also assign its rights to receive payment due as a result of the performance of this Agreement to a bank, trust company, or other financing institution. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
Rights and Remedies. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.
Waiver; Severability. The waiver by either party of a breach of or a default under this Agreement will not be effective unless in writing. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Interpretation. For purposes of interpreting this Agreement, (i) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (ii) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (iii) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (iv) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (v) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement; and (vi) the references herein to the parties will refer to their permitted successors and assigns.
Integration; Entire Agreement. This Agreement, along with any additional terms incorporated herein by reference, including any Order(s) or Exhibit(s), constitutes the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications, and understandings, written or oral, relating to their subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed or otherwise accepted by duly authorized representatives of both parties, including through an Order accepted in accordance with Section 13(a). Any preprinted or standard terms supplied by Customer in a purchase order, procurement portal, vendor form, or similar document are rejected and will have no effect unless expressly accepted in writing by an authorized representative of the Company.
Electronic signatures and electronic communications, including email, shall have the same legal effect as handwritten signatures. Orders or renewals accepted electronically by the parties shall be deemed binding as if executed manually.