Last Updated: January 3, 2024
PLEASE READ THESE TERMS OF SERVICE ("TERMS") CAREFULLY BEFORE USING ANY FOXGLOVE SERVICES. BY EXECUTING ONE OR MORE ORDER FORMS WHICH REFERENCE THESE TERMS, OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU AGREE TO BE BOUND BY THESE TERMS, OR IF YOU REPRESENT A COMPANY THAT THE COMPANY IS AGREEING TO BE BOUND BY THEM. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, AND IF YOU REPRESENT A COMPANY THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means these Terms of Service and any Order Forms, exhibits, schedules, and addenda hereto.
"Customer" means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
"Customer Data" means electronic data and information submitted by or for Customer to the Services.
"Documentation" means all specifications, user manuals, and other materials relating to the Services and provided or made available by Foxglove to Customer, as may be modified by Foxglove from time to time.
"Foxglove" means Foxglove Technologies Inc., a Delaware corporation.
"Free Services" means Services provided to Customer free of charge, including those provided pursuant to a free trial.
"Malicious Code" means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Open-Source Software" means source code or object code made available by Foxglove under open-source license terms. Use of Open-Source Software is governed by its respective license and not this Agreement.
"Order Form" means an order document or online order that is entered into between Customer and Foxglove or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Professional Services" means training, migration, or other professional services that Foxglove furnishes to Customer related to the Services.
"Services" means the products and services (including Software and Free Services) made available to Customer by Foxglove as described in the Documentation, excluding Professional Services and Third-Party Services.
"Software" means any software made available by Foxglove that Customer downloads, installs and hosts on its premises, cloud, or systems, excluding Open-Source Software.
"Third-Party Service" means third-party web-based, desktop, mobile, offline, or other software functionality that interoperates with a Service.
"User" means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Free Services, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Foxglove at Customer's request) has supplied a user login or other authentication method (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.
2. FOXGLOVE RESPONSIBILITIES
2.1 Provision of Services; License. Foxglove will (a) make the Services available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, and (b) provide the Services in accordance with laws and government regulations applicable to Foxglove's provision of its Services to its customers generally (i.e., without regard for Customer's particular use of the Services), and subject to Customer's and Users' use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form. Subject to the terms of this Agreement, Foxglove hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right and license during the term of the Agreement to: (i) access and use any Services that are hosted by Foxglove in accordance with the Documentation; (ii) download, install, and use the Software (and reproduce the Software for backup purposes) solely on servers and systems owned, operated or controlled by Customer in accordance with the Documentation.
2.2 Protection of Customer Data. Foxglove will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Foxglove will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Foxglove will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 Personal Data. The Services do not generally require any personal or sensitive information and Customer should not provide any such information in connection with its use of the Services. Foxglove assumes no responsibility for ensuring compliance with any privacy laws; if it becomes necessary to provide personal information the parties shall enter into a separate Data Processing Addendum that will govern use of such information.
2.4 Foxglove Personnel. Foxglove will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Foxglove's obligations under this Agreement, except as otherwise specified in this Agreement.
2.5 Free Services. Foxglove may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer up to certain limits as described in the Documentation, and Customer may not attempt to bypass these limits. Usage over these limits requires Customer's purchase of additional resources or services. Customer agrees that Foxglove, in its sole discretion and for any or no reason, may terminate Customer's access to the Free Services or any part thereof. Customer agrees that any termination of Customer's access to the Free Services may be without prior notice, and Customer agrees that Foxglove will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer's access to the Free Services for any reason, provided that if Foxglove terminates Customer's account, except as required by law Foxglove will provide Customer a reasonable opportunity to retrieve its Customer Data.
NOTWITHSTANDING THE "REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS" SECTION AND "INDEMNIFICATION BY FOXGLOVE" SECTION BELOW, FREE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND FOXGLOVE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE FOXGLOVE'S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, FOXGLOVE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER'S USE OF THE FREE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, (B) CUSTOMER'S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF LIABILITY" SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO FOXGLOVE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.6 Professional Services. If specified in an applicable Order Form, Foxglove will perform Professional Services as described in such Order Form, which may identify additional terms or milestones. Customer may use code or other deliverables that Foxglove furnishes as part of Professional Services only in connection with Customer's authorized use of the Services under this Agreement.
3. USE OF SERVICES
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Foxglove regarding future functionality or features.
3.2 Usage Limits. Services are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Foxglove may work with Customer to seek to reduce Customer's usage so that it conforms to that limit. If, notwithstanding Foxglove's efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer agrees to execute an Order Form for additional quantities of the applicable Services promptly upon Foxglove's request.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users' compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer's use of Customer Data with the Services, and the interoperation of any Third-Party Services with which Customer uses Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Foxglove promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement, Documentation, Order Forms, and applicable laws and government regulations, (e) comply with terms of service of any Third-Party Services with which Customer uses Services, and (f) comply with the license terms of any Open-Source Software. For Software that is made available as part of the Services, Customer will not (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software or (ii) use the Software for a third party, whether directly or on a rental, time-share, or lease basis. Any use of the Services in breach of the foregoing by Customer or Users that in Foxglove's judgment threatens the security, integrity, or availability of Foxglove's services, may result in Foxglove's immediate suspension of the Services, however Foxglove will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions. Customer will not (and will not authorize or permit any third party to) (a) make any Service available to anyone other than Customer or Users, or use any Service for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service or Third-Party Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Third-Party Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of Foxglove intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than as permitted in the Documentation, (j) access, disassemble, reverse engineer, or decompile a Service to (1) create, train, develop, or improve a competitive product or service, (2) create, train, develop, or improve a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.5 Removal of Third-Party Services. If Customer receives notice, including from Foxglove that a Third-Party Service may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or for any other reason, Customer will promptly do so. If Customer does not take required action, in accordance with the above, or if in Foxglove's judgment continued violation is likely to reoccur, Foxglove may disable the applicable Service and/or Third-Party Service. If requested by Foxglove, Customer shall confirm deletion and discontinuance of use of such Third-Party Service in writing and Foxglove shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable.
4. THIRD-PARTY PRODUCTS AND SERVICES
4.1 Third-Party Products and Services. Foxglove or third parties may make available third-party products or services, including, without limitation, Third-Party Services and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any third-party provider, product or service is solely between Customer and the applicable third-party provider. Foxglove does not warrant or support Third-Party Services or other third-party products or services, whether or not they are designated by Foxglove as "certified" or otherwise, unless expressly provided otherwise in an Order Form. Foxglove is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Service or its provider.
4.2 Integration with Third-Party Services. The Services may contain features designed to interoperate with Third-Party Services. Foxglove cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the corresponding Service features in a manner acceptable to Foxglove.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (a) fees are based on Services subscriptions purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment. If Customer provides credit card information to Foxglove, Customer authorizes Foxglove to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the "Term of Purchased Subscriptions" section below. Such credit card charges shall be made monthly or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form does not specify that payment will be accepted via credit card, Foxglove will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due upon receipt. Customer is responsible for providing complete and accurate billing and contact information to Foxglove and notifying Foxglove of any changes to such information.
5.3 Overdue Charges. 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/or (b) Foxglove may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the "Invoicing and Payment" section above.
5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, Foxglove may, without limiting its other rights and remedies, accelerate Customer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Foxglove will give Customer at least 10 days' prior notice that its account is overdue, in accordance with the "Notices" section below for billing notices, before suspending services to Customer.
5.5 Payment Disputes. Foxglove will not exercise its rights under the "Overdue Charges" or "Suspension of Service and Acceleration" section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. Foxglove's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Foxglove has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Foxglove will invoice Customer and Customer will pay that amount unless Customer provides Foxglove with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Foxglove is solely responsible for taxes assessable against it based on its income, property, and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Foxglove, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Services, Professional Services, Documentation, and all improvements, enhancements, or modifications to the foregoing, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 License by Customer to Foxglove. Customer hereby grants to Foxglove, its Affiliates and applicable contractors a worldwide, non-exclusive, royalty-free license (a) to host, copy, use, transmit, process, and display Customer Data as appropriate to provide and ensure proper operation of the Services, Professional Services, and associated systems in accordance with this Agreement, and (b) to improve, train, and develop Foxglove's products and services (including, without limitation, machine learning models). If Customer chooses to use a Third-Party Service with a Service, Customer hereby grants Foxglove permission to allow the Third-Party Service and its provider to access Customer Data and information about Customer's usage of the Third-Party Service as appropriate for the interoperation of that Third-Party Service with the Service. Subject to the limited licenses granted herein, Foxglove acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
6.3 Usage Data. Foxglove may collect information about Customer's use of the Services, and may (a) use such information to provide, analyze, support, improve, train, and develop Foxglove's products and services, and (b) disclose such information only in a statistical, aggregated and/or de-identified form in a manner that does not identify Customer or any of its Users.
6.4 Feedback. Customer grants to Foxglove and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, make, and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Foxglove's or its Affiliates' services.
6.5 Federal Government End Use Provisions. Foxglove provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of "commercial items," as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
7.1 Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Foxglove includes the Services, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this "Confidentiality" section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Foxglove services.
7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party's prior written consent, provided that a party that makes any such disclosure will remain responsible for such Affiliate's, legal counsel's, or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, Foxglove may disclose the terms of this Agreement and any applicable Order Form to a contractor or Third-Party Service provider to the extent necessary to perform Foxglove's obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Foxglove Warranties and Remedies. Foxglove warrants that during an applicable subscription term (a) this Agreement, the Order Forms, and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Foxglove will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, (d) subject to the "Integration with Third-Party Services" section above, Foxglove will not materially decrease the overall functionality of the Services, and (e) any Professional Services will be provided in a professional and workmanlike manner. Foxglove will use reasonable efforts to correct a verified breach of these warranties reported by Customer. If Foxglove fails to do so within 30 days after Customer's warranty report, then either party may terminate the Order Form and/or SOW as relates to the non-conforming Service or Professional Services, in which case Foxglove will refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Services subscription term or for the non-conforming Professional Services, as applicable. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Services or 30 days after delivery of the relevant Professional Services. These procedures are Customer's exclusive remedies and Foxglove's sole liability for breach of these warranties.
8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE ARE PROVIDED "AS IS," AND ARE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by Foxglove. Foxglove will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party's intellectual property rights (a "Claim Against Customer"), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Foxglove in writing of, a Claim Against Customer, provided Customer (a) promptly gives Foxglove written notice of the Claim Against Customer, (b) gives Foxglove sole control of the defense and settlement of the Claim Against Customer (except that Foxglove may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Foxglove all reasonable assistance, at Foxglove's expense. If Foxglove receives information about an infringement or misappropriation claim related to a Service, Foxglove may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Foxglove's warranties under "Foxglove Warranties" above, (ii) obtain a license for Customer's continued use of that Service in accordance with this Agreement, or (iii) terminate Customer's subscriptions for that Service upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Foxglove, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Free Services; or (4) a Claim against Customer arises from a Third-Party Service or Customer's breach of this Agreement, the Documentation, or applicable Order Forms.
9.2 Indemnification by Customer. Customer will defend Foxglove and its Affiliates against any claim, demand, suit or proceeding made or brought against Foxglove by a third party (a) alleging that the combination of a Third-Party Service or configuration provided by Customer and the Services infringes or misappropriates such third party's intellectual property rights, or (b) arising from (i) Customer's use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data or Customer's use of Customer Data with the Services, or (iii) a Third-Party Service provided by Customer (each a "Claim Against Foxglove"), and will indemnify Foxglove from any damages, attorney fees and costs finally awarded against Foxglove as a result of, or for any amounts paid by Foxglove under a settlement approved by Customer in writing of, a Claim Against Foxglove, provided Foxglove (1) promptly gives Customer written notice of the Claim Against Foxglove, (2) gives Customer sole control of the defense and settlement of the Claim Against Foxglove (except that Customer may not settle any Claim Against Foxglove unless it unconditionally releases Foxglove of all liability), and (3) gives Customer all reasonable assistance, at Customer's expense. The above defense and indemnification obligations do not apply if a Claim Against Foxglove arises from Foxglove's breach of this Agreement, the Documentation, or applicable Order Forms.
9.3 Exclusive Remedy. This "Mutual Indemnification" section states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Purchased Subscriptions. Except as otherwise specified in the applicable Order Form, (a) the term of each subscription shall be one year, and (b) subscriptions will automatically renew for additional one year terms at Foxglove's then applicable list price, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term.
11.3 Termination. A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the "Termination" section above, Foxglove will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Foxglove in accordance with the "Termination" section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Foxglove for the period prior to the effective date of termination.
11.5 Surviving Provisions. The sections titled "Free Services," "Fees and Payment," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Removal of Third-Party Services," "Surviving Provisions" and "General Provisions" will survive any termination or expiration of this Agreement, and the section titled "Protection of Customer Data" will survive any termination or expiration of this Agreement for so long as Foxglove retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Services, other Foxglove technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Foxglove and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Foxglove and Customer regarding Customer's use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4 Publicity. Customer grants Foxglove the right to identify it as a customer of Foxglove and use Customer's name, logos and other marks on Foxglove's website and marketing materials for that purpose. Foxglove shall follow Customer's standard guidelines for such usage.
12.5 Updated Agreement. Foxglove reserves the right to update this Agreement at any time. The terms of the updated Agreement shall apply to all Order Forms or renewals following the date of publication of the updated Agreement on Foxglove's website, or, for Free Services shall apply immediately. If Customer does not agree with any terms of the updated Agreement, Customer may not use or access the Services in any manner.
12.6 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.7 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.8 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Foxglove will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.11 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim ("Legal Notices"), the day of sending by email. Notices to Foxglove will be addressed to the attention of Foxglove General Counsel at [email protected] or 548 Market St #21536, San Francisco, CA 94104, United States. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
12.12 Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
12.13 Venue. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
12.14 Counterparts. This Agreement may be executed electronically and in counterparts.