Last Updated: August 25, 2022
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE OFFERED BY FOXGLOVE TECHNOLOGIES INC. ("FOXGLOVE"). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS OR SELF-SERVICE ORDERS WITH FOXGLOVE WHICH REFERENCE THESE TERMS (EACH, A "SERVICE ORDER") OR BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU ("YOU" OR "CUSTOMER") AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO "CUSTOMER" AND "YOU" IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICE IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. SCOPE OF SERVICES AND RESTRICTIONS
1.1 Access to and Scope of Services. Subject to Foxglove’s receipt of the applicable Fees, Foxglove will use commercially reasonable efforts to make its applications, software, and services (collectively, the "Services") available to Customer as set forth in this Agreement and the applicable Service Order. Subject to Customer’s compliance with the terms and conditions of the Agreement and the Service Order, Customer may access and use the Services during the period specified in the Service Order. Any such use of the Services by Customer is solely for Customer’s internal business.
1.2 Trials. If Customer is accessing or making use of the Services on a trial or no-fee basis (the "Trial"), Customer acknowledges and agrees that the Trial is provided on an "as-is" basis, and the Trial is provided without any indemnification, support, or warranties or representation of any kind. Further, the Trial may be subject to certain additional restrictions, limitations all as determined by Foxglove from time-to-time. Foxglove may terminate, restrict, discontinue, or limit Trials at any time and in Foxglove’s sole discretion.
1.3 Restrictions. Customer will use the Services only in accordance with all applicable laws, including, but not limited to, laws related to data (whether applicable within the United States, the European Union, or otherwise). Customer agrees not to (and will not allow any third party to): (i) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Services or any software used to provide or make the Services available; or (iii) rent, resell or otherwise allow any third party access to or use of the Services.
1.4 Ownership. Foxglove retains all right, title, and interest in and to the Services, and any software, products, works or other intellectual property created, used, provided, or made available by Foxglove under or in connection with the Services. Customer may from time to time provide suggestions, comments, or other feedback to Foxglove with respect to the Services ("Feedback"). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Foxglove. Customer shall, and hereby does, grant to Foxglove a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Foxglove’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software, or technologies that Customer may develop, produce, market, or distribute.
1.5 No Software. Customer acknowledges and agrees that no software source code with respect to the Services will be provided to Customer hereunder, and that certain software libraries and tools, and updates thereto are necessary to access and use the Services (the "Foxglove Open Source"). The Foxglove Open Source is available at github.com/foxglove under applicable open source licensing terms. Customer agrees that it is responsible for obtaining, installing, and maintaining the Foxglove Open Source, and that Foxglove makes no representations, warranties or is otherwise liable or obligated hereunder with respect to such Foxglove Open Source. The Foxglove Open Source may change from time-to-time as indicated on GitHub.
1.6 User Data. Customer is solely responsible for User Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to User Data; (c) any claims that User Data infringes, misappropriates, or otherwise violates the rights of any third party; and (d) maintaining User Data. Customer hereby grants to Foxglove a limited license to use, reproduce, electronically distribute, transmit, have transmitted, display, store, archive, and make derivative works of User Data (a) to provide the Services and/or analyze such User Data through Foxglove Open Source; (b) to provide support to Customer; and (c) to make improvements to the Services. "User Data" means any information, data (e.g., robotics data), content, comments, and/or files Customer transmits, uploads, or stores in association with its use of the Services. Customer (not Foxglove) has control over any User Data stored by operation of the Services. Notwithstanding any provision to the contrary, the Services does not require any information that identifies, relates to, describes, is reasonably capable of being associated with, could reasonably be linked, directly or indirectly, with a particular consumer or household, or is otherwise subject to applicable data privacy law or regulation (collectively, "Personal Data"). Customer’s storage of any Personal Data in connection with its use of the Services is at Customer’s own risk, and Foxglove will bear no risk or liability for the same.
1.7 Support. Foxglove will use commercially reasonable efforts to make the Foxglove support services as specified in the corresponding Service Order available to Customer (the "Foxglove Support").
1.8 Service Suspension. Foxglove may suspend Customer’s access to or use of the Services as follows: (a) immediately if Foxglove reasonably believes Customer’s use of the Services may pose a security risk to or may adversely impact the Services; (b) immediately if Customer become insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (c) following thirty (30) days written notice if Customer is in breach of this Agreement or any Service Order (and has not cured such breach, if curable, within the thirty (30) days of such notice); or (d) Customer has failed to pay Foxglove the Fees with respect to the Services. If any amount owing by Customer is thirty (30) or more days overdue (or 10 or more days overdue in the case of invoices to be paid by credit card), Foxglove may, without limiting any rights and remedies, accelerate Customer’s unpaid fee obligations to become immediately due and payable, and suspend the provision of the Services to Customer until the overdue amounts are paid in full. Foxglove will give Customer at least ten (10) days’ prior notice that its account is overdue before suspending services to Customer due to overdue amounts.
2. FEES AND TAXES
2.1 Fees. Customer shall pay to Foxglove the fees as set forth in each applicable Service Order (collectively, the "Fees") and will provide accurate and updated billing contact information. Minimum commitments as set forth in Service Orders are (a) based on the Services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term set forth in such Service Order. Fees paid for minimum commitments and actual usage are not refundable. Customer’s payments of Fees are neither (x) contingent on the delivery of any future functionality or features, nor (y) dependent on statements not set forth in this Agreement.
2.2 Invoicing Terms. Foxglove will invoice Customer either monthly or according to the billing frequency stated in the Service Order, and Customer will pay all invoices upon receipt unless otherwise provided in the corresponding Service Order. If any invoiced amount is not received by Foxglove by the due date, then without limiting Foxglove’s rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (b) Foxglove may condition future renewals and Service Orders on shorter payment terms
2.3 Self-Service Use. If Customer makes use of or accesses the Services by initiating the Services via Foxglove’s website ("Self-Service Use"), and if credit card payment terms and associated fees are presented to Customer at that time, the applicable fees and use limitations with respect to Customer’s Self-Service Use shall be those presented to Customer in connection with its Self-Service Use (such fees and use limitations, the "Self-Service Order").
2.4 Taxes. All payments made by Foxglove in accordance with this Agreement are exclusive of any taxes that might be assessed in any jurisdiction. Customer shall pay or reimburse Foxglove for all value-added, sales, use, property, and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Foxglove. All amounts payable to Foxglove under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the Effective Date and unless terminated earlier according to this Section 3, will end on the last day of the term specified in a last Service Order (the "Term"). Each Service Order will renew automatically at the end of the applicable term unless either party provides to the other advance written notice with respect to non-renewal at least thirty (30) days prior to the end of the then current term.
3.2 Termination. This Agreement and the Service Orders hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, following thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable; or (b) by Foxglove upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) has effected a compulsory or voluntary liquidation or dissolution, or (iv) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction.
3.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Services, and (ii) return all Foxglove Confidential Information and other materials and information provided by Foxglove. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated due to Section 3.2 (a), Customer shall pay to Foxglove all Fees set forth in the corresponding Service Order(s).
3.4 Survival. The following provisions will survive termination of this Agreement: Sections 1.4 (Ownership), 3.3 (Effect of Termination), Section 3.4 (Survival), Section 4 (Confidentiality), Section 7 (Limitation of Liability), Section 8 (Miscellaneous).
During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information ("Confidential Information"). All materials and information provided by the disclosing party and identified at the time of disclosure as "Confidential" or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party, shall be considered Confidential Information. This Agreement is Confidential Information, and all pricing terms are Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.
5.1 Indemnification by Customer. Customer will defend, indemnify, and hold Foxglove, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) User Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from User Data.
5.2 Indemnification by Foxglove. Foxglove will defend, indemnify, and hold Customer harmless from and against any third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party that Customer’s use of the Services directly infringes or misappropriates a third party’s United States (or Berne Convention signatory country) intellectual property rights (an "Infringement Claim"). Notwithstanding any other provision in this Agreement, Foxglove shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any User Data with the Services; (b) the combination of any products or services, other than those provided by Foxglove to Customer under this Agreement, with the Services; or (c) non-discretionary designs or specifications provided to Foxglove by Customer that caused such Infringement Claim. Customer agrees to reimburse Foxglove for all damages, losses, costs, and expenses incurred as a result of any of the foregoing actions.
5.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity or reimbursement under this Section 5 (each an "Indemnified Party") and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim. Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 7, the provisions of this Section 5 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 5, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.
6.1 Warranty. The Services, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable documentation (the "Documentation"), will perform, in all material respects, the functions described in the Documentation during the Term.
6.2 Exclusive Remedies. Customer shall report to Foxglove, pursuant to the notice provision of this Agreement, any breach of the warranties set forth in this Section 6. In the event of a breach of warranty by Foxglove under this Agreement, Customer’s sole and exclusive remedy, and Foxglove’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business.
6.3 Disclaimer of Warranty. Foxglove does not represent or warrant that the operation of the Services (or any portion thereof) will be uninterrupted or error free, or that the Services (or any portion thereof) will operate in combination with other hardware, software, systems, or data not provided by Foxglove, except as expressly specified in the applicable Documentation. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, FOXGLOVE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. FOXGLOVE IS FURNISHING THE WARRANTIES SET FORTH IN SECTION 6.1 IN LIEU OF, AND FOXGLOVE HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
7. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL FOXGLOVE BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. FOXGLOVE’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.
8.1 Export Control. Customer hereby certifies that Customer will comply with all current US Export Control laws. Customer agrees to defend, indemnify and hold Foxglove harmless from any liability for Customer’s violation of U.S. Export Control laws.
8.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Services, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Foxglove from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Foxglove arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.
8.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Foxglove may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition, or sale of all or substantially all of its assets.
8.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, internet outage, pandemic, terrorism, war, fires, earthquakes, and other disasters (each a "Force Majeure"). Notwithstanding the foregoing: (i) Customer shall be liable for payment obligations for Services rendered; and (ii) if a Force Majeure continues for more than thirty (30) days, either party may terminate this agreement by written notice to the other party.
8.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service.
8.6 No Agency. Both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Foxglove.
8.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, or any Purchase Order issued under this Agreement.
8.8 Publicity. Customer hereby grants Foxglove the right to identify Customer as a Foxglove Customer, and use Customer’s name, mark and/or logo on Foxglove’s website and/or in Foxglove’s marketing materials with respect to the same. In addition, Customer agrees to participate in certain publicity activity, such as a case study, customer quote, and joint press release all if described in the corresponding Service Order.
8.9 Updated Agreement. Foxglove reserves the right to update this Agreement at any time. The terms and conditions of the updated version of the Agreement shall apply to all Service Orders placed following the date of publication of the updated version on Foxglove’s website at https://foxglove.dev/legal/terms. If Customer does not agree with any terms of the updated Agreement, Customer may not use or access the Services in any manner.
8.10 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and the Service Order document, the terms of this Agreement shall control.