Customer Terms and Conditions

These Customer Terms and Conditions (this “Agreement”), effective as of the date on which you click a button or check a box (or something similar) acknowledging your acceptance of this Agreement or you execute with Flecks an Order that incorporates this Agreement by reference (the “Effective Date”), is by and between Flecks, Inc., a Delaware corporation with offices located at 6400 S. Fiddler’s Green Cir., Suite 300, Greenwood Village, CO 80111 (“Flecks”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. The Parties agree as follows:

1. Definitions

“Authorized User” means Customer’s employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Platform under this Agreement; and (ii) for whom access to the Platform has been purchased hereunder.

“Client-Side Software” means any Flecks software in source or object code form that Flecks makes available to Customer for use in connection with the Platform.

“Customer Data” means information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Platform; provided that Customer Data does not include Usage Data or raw data that is processed by the Client-Side Software on Customer Systems without transmission to the Platform.

“Customer Systems” means Customer’s information technology infrastructure, including computers, software, databases, electronic systems, and networks, whether operated directly by Customer or through third-party service providers.

“Documentation” means Flecks’s end user documentation relating to the Platform made available to Customer via Customer’s account on the Platform.

“DPA” means the Flecks Data Protection Agreement, available at flecks.ai/dpa, which governs the Processing of Personal Data by Flecks on behalf of Customer and is incorporated into and forms part of this Agreement.

“Flecks IP” means the Platform, the Client-Side Software, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. Flecks IP includes Usage Data and any information, data, or other content derived from Flecks’s provision of the Platform but does not include Customer Data.

“Harmful Code” means any software, hardware, or other technology whose purpose or effect is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm any computer, software, firmware, hardware, system, or network.

“Order” means: (i) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Customer registered for the Platform through Flecks’s online ordering process, the results of such online ordering process.

“Personal Data” means any information that, individually or in combination, does or can identify a specific individual, including all data considered “personal data,” “personally identifiable information,” or similar under applicable privacy laws.

“Platform” means Flecks’s proprietary hosted software platform, as made available to Authorized Users from time to time.

“Professional Services” means training, migration, implementation, integration, or other professional services memorialized in writing in a Statement of Work.

“Security Metadata” means parsed, structured event-timeline data generated by the Client-Side Software through analysis of telemetry on Customer Systems, including event timestamps, hostnames, usernames, IP addresses, file paths and names, file hashes, process names and arguments, registry keys, network connection records, browser history records, authentication events, and similar security-relevant indicators. Security Metadata does not include the underlying user-created content of files, the contents of email or messaging bodies, raw memory images, raw disk images, or raw registry hives. Security Metadata is the data transmitted from Customer Systems to the Platform.

“Sensitive Data” means: (i) special categories of data under EU Regulation 2016/679, Article 9(1); (ii) protected health information under HIPAA; (iii) payment cardholder or financial account information; (iv) social security numbers, driver’s license numbers, or other government identification numbers; (v) data subject to COPPA, GLBA, or similar regulation; or (vi) any data similar to the above protected under applicable law.

“Statement of Work” means a written statement of work for Professional Services executed by both Parties that incorporates this Agreement by reference.

“Subscription Period” means the time period identified on the Order during which Customer’s Authorized Users may access and use the Platform.

“Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.

“Usage Data” means usage data collected and processed by Flecks in connection with Customer’s use of the Platform, including data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Platform.

“Usage Limitations” means the usage limitations set forth in this Agreement and the Order, including any limitations on the number of Authorized Users and the applicable product, pricing, and support tiers.

2. Access and Use

2.1 Provision of Access

Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including the Usage Limitations, Customer may, solely through its Authorized Users, access and use the Platform during the Subscription Period on a non-exclusive, non-transferable (except in compliance with Section 12.8), and non-sublicensable basis. Such use is limited to Customer’s internal business purposes and the features and functionalities specified in the Order. The foregoing includes a limited license for Customer to install and use the Client-Side Software solely in support of Customer’s authorized use of the Platform. Each Authorized User must have its own unique account on the Platform. Customer will be responsible for all acts and omissions of its Authorized Users.

2.2 Documentation License

Subject to Customer’s compliance with this Agreement, Flecks hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Documentation during the Subscription Period solely for Customer’s internal business purposes in connection with its use of the Platform.

2.3 Use Restrictions

Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, and shall not permit any Authorized User to: (a) copy, modify, or create derivative works of any Flecks IP; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation to any third party; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform; (d) remove any proprietary notices from any Flecks IP; (e) use any Flecks IP in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (f) access or use any Flecks IP for purposes of competitive analysis of Flecks or the Platform, or development of a competing product or service; (g) bypass or breach any security device or protection used by the Platform; (h) input, upload, transmit, or otherwise provide to or through the Platform any information or materials that are unlawful or injurious or that contain, transmit, or activate any Harmful Code; (i) use any Flecks IP for any activity where use or failure of the Flecks IP could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control; or (j) use Output to develop any artificial intelligence (“AI”) models that compete with Flecks’s products or services.

3. Data Rights and Outputs

3.1 Client-Side Software and Security Metadata

For Flecks to provide the Platform, Customer must install and run the Client-Side Software on Customer Systems. The Client-Side Software processes information, data, and other content residing on Customer Systems locally. In the ordinary course of operation, raw data residing on Customer Systems is not transmitted to, or processed by, Flecks and is therefore not considered “Customer Data” for purposes of this Agreement. Only Security Metadata generated by the Client-Side Software is transmitted to the Platform. Security Metadata constitutes Customer Data for purposes of this Agreement.

3.2 Customer Data

Customer hereby grants to Flecks a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Flecks to provide the Platform.

3.3 Security Measures and Processing

Flecks shall use commercially reasonable efforts to maintain the security and integrity of the Platform and the Customer Data. Customer acknowledges and agrees that the Platform may be subject to limitations on storage time and volume. Following expiration or termination of this Agreement, Flecks shall delete Customer Data in accordance with the terms of the DPA. Flecks shall Process Customer Data only as necessary to provide the Platform to Customer, comply with applicable law, and enforce Flecks’s policies. Flecks does not use Customer Data to train, fine-tune, or improve generally applicable AI or machine learning models. Customer represents and warrants that it has all rights, consents, and authorizations necessary to grant such rights to Flecks.

3.4 Data Use and Privacy

Flecks’s rights and obligations with respect to Personal Data that it collects directly from individuals are set forth in Flecks’s Privacy Policy at flecks.ai/privacy. The Processing of Personal Data by Flecks on behalf of Customer is governed by the DPA, which is incorporated into and forms part of this Agreement. Customer acknowledges and agrees that: (i) the Platform is not designed for the storage of Sensitive Data; (ii) Customer will not knowingly use the Platform to store Sensitive Data and will not knowingly submit, post, or otherwise transmit through the Platform any Customer Data that includes or constitutes Sensitive Data; and (iii) Security Metadata transmitted to the Platform may incidentally contain values that constitute Personal Data or Sensitive Data (for example, where an identifier appears within a file path, URL, or username). Customer represents and warrants that any such incidental transmission is supported by a valid legal basis under applicable law.

3.5 AI Technologies

The Platform includes features and functionalities supported by AI technologies. Customer may provide Customer Data via the Platform and receive outputs from the Platform based on that Customer Data (“Output”). As between Flecks and Customer, Customer: (i) retains all ownership rights in its Customer Data; and (ii) owns all Output. Customer acknowledges that Output may contain errors or misleading information and may perpetuate biases. Customer is solely responsible for evaluating Output for accuracy and appropriateness. ALL OUTPUT IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.

3.6 Reservation of Rights

Flecks reserves all rights not expressly granted to Customer in this Agreement. Nothing in this Agreement grants Customer any intellectual property rights in the Flecks IP beyond the limited rights expressly set forth herein.

3.7 Suspension

Flecks may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Flecks reasonably determines that (a) there is a threat or attack on any of the Flecks IP; (b) Customer’s or any Authorized User’s use of the Flecks IP disrupts or poses a security risk to the Flecks IP or to any other customer or vendor of Flecks; (c) Customer or any Authorized User is using the Flecks IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy or insolvency proceeding; (e) Flecks’s provision of the Platform to Customer is prohibited by applicable law; or (f) any Customer Data transmitted through the Platform may infringe or violate any third party’s intellectual property or other rights; (ii) any vendor of Flecks has suspended or terminated Flecks’s access to any Third-Party Products required to enable Customer to access the Platform; or (iii) in accordance with Section 5.1. Flecks will have no liability for any damage, liabilities, losses, or other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

3.8 Usage Data

Notwithstanding anything to the contrary in this Agreement, Flecks may process Usage Data to monitor, maintain, optimize, and improve the Platform, for security research and threat intelligence purposes, and for other legitimate business purposes reasonably related to the provision of the Platform. Flecks shall not sell Usage Data to third parties or use Usage Data to train generally applicable artificial intelligence or machine learning models that are not specific to Customer’s use of the Platform. As between Flecks and Customer, all right, title, and interest in and to Usage Data is owned solely and exclusively by Flecks.

3.9 Open Source Components

Certain aspects of the Platform may contain or be distributed with open source software code or libraries (“Open Source Components”). Flecks will provide a list of Open Source Components for a particular version of any distributed portion of the Platform on Customer’s request. The terms of the applicable open source licenses will apply to such Open Source Components.

4. Customer Responsibilities

4.1 General

Customer is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Customer, directly or indirectly. Customer is responsible for all acts and omissions of Authorized Users. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions and shall cause Authorized Users to comply with such provisions.

4.2 Third-Party Products

Flecks may from time to time make Third-Party Products available to Customer or allow certain Third-Party Products to be integrated with the Platform. Such Third-Party Products are subject to their own terms and conditions. Flecks is not responsible for the operation of any Third-Party Products and makes no representations or warranties with respect thereto.

4.3 Customer Control and Responsibility

Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Platform; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Platform by or through Customer Systems or access credentials.

4.4 Support

During the Subscription Period, Flecks will use commercially reasonable efforts to provide Customer with basic customer support via Flecks’s standard support channels during Flecks’s normal business hours.

5. Fees and Taxes

5.1 Fees

Customer shall pay Flecks the fees (“Fees”) identified in the Order without offset or deduction at the cadence identified in the Order. Fees paid by Customer are non-refundable. Customer shall make all payments hereunder in US dollars. If Customer pays via invoice, Customer will pay the invoiced amount within thirty (30) calendar days of the invoice date. If Customer fails to make any payment when due: (i) Flecks may charge interest on the undisputed past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Flecks for all reasonable costs incurred in collecting any late payments or interest, including attorneys’ fees; and (iii) if such failure continues for ten (10) days or more, Flecks may suspend Customer’s access to the Platform until such amounts are paid in full.

5.2 Taxes

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges imposed by any governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Flecks’s income.

6. Confidential Information

6.1 Definition

From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, and other sensitive or proprietary information (“Confidential Information”). Confidential Information does not include information that, at the time of disclosure: (w) is in the public domain; (x) is known to the receiving Party at the time of disclosure; (y) is rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (z) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.

6.2 Duty

The receiving Party shall not use the disclosing Party’s Confidential Information except to perform its obligations and exercise its rights hereunder, nor shall it disclose the disclosing Party’s Confidential Information to any person or entity except to the receiving Party’s employees, contractors, and agents who have a need to know such information and are bound by confidentiality obligations no less protective than those set forth herein (“Representatives”). Each Party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, provided that the Party making the disclosure shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order. Each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.

6.3 Return of Materials; Survival

On the expiration or termination of the Agreement, the receiving Party shall promptly return or destroy all copies of the disclosing Party’s Confidential Information and certify such return or destruction in writing. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, that obligations of non-disclosure with respect to any Confidential Information that constitutes a trade secret will survive until such information is no longer a trade secret through no wrongful act of the receiving Party.

7. Intellectual Property Ownership; Feedback

7.1 Flecks IP

Customer acknowledges that, as between Customer and Flecks, Flecks owns all right, title, and interest, including all intellectual property rights, in and to the Flecks IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

7.2 Customer Data and Output

Flecks acknowledges that, as between Flecks and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Output.

7.3 Feedback

If Customer or any of its employees or contractors sends or transmits any communications or materials to Flecks suggesting or recommending changes to the Flecks IP, including without limitation new features or functionality (“Feedback”), Flecks is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

8. Warranty; Disclaimer

Flecks represents and warrants that the Platform will be provided in material conformance with the Documentation. Flecks’ sole liability and Customer’s sole and exclusive remedy for any breach of this warranty shall be, in Flecks’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Flecks determines such remedies to be impracticable, to allow Customer to terminate the applicable Order and receive a refund of any fees Customer has pre-paid for use of the Platform it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 8 shall not apply: (a) unless Customer makes a claim within sixty (60) days of the date on which Customer first becomes aware of the claim; or (b) if the error was caused by Customer’s misuse, unauthorized modifications, or third-party hardware, software, or services not authorized for use with the Platform.

THE FLECKS IP IS PROVIDED “AS IS” AND FLECKS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FLECKS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FLECKS MAKES NO WARRANTY OF ANY KIND THAT THE FLECKS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9. Indemnification

9.1 Flecks Indemnification

Flecks shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any claim, suit, action, or proceeding brought by an unaffiliated third party (“Third-Party Claim”) against Customer alleging that the Platform, or any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies Flecks in writing of the claim, cooperates with Flecks, and allows Flecks sole authority to control the defense and settlement of such claim. This Section 9.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Platform in combination with data, software, hardware, equipment, or technology not provided by Flecks or authorized by Flecks in writing; (ii) modifications to the Platform not made by Flecks; (iii) Customer Data; or (iv) Third-Party Products.

9.2 Customer Indemnification

Customer shall indemnify, hold harmless, and, at Flecks’s option, defend Flecks from and against any Losses resulting from any Third-Party Claim alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Platform in a manner not authorized by this Agreement; (iii) use of the Platform in combination with data, software, hardware, equipment, or technology not provided by Flecks or authorized by Flecks in writing; or (iv) use of or reliance on any Outputs.

9.3 Sole Remedy

THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND FLECKS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. Limitations of Liability

IN NO EVENT WILL FLECKS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER FLECKS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL FLECKS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO FLECKS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

11. Subscription Period and Termination

11.1 Subscription Period

The initial term of this Agreement begins on the Effective Date and, unless terminated earlier, will continue in effect for the period identified in the Order (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.

11.2 Termination

In addition to any other express termination right set forth in this Agreement: Flecks may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Flecks’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3 or Section 6. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach. Either Party may terminate this Agreement, effective immediately upon written notice, if the other Party becomes insolvent, files for bankruptcy, makes an assignment for the benefit of its creditors, or has a receiver appointed.

11.3 Effect of Expiration or Termination

Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Flecks IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Flecks IP and certify in writing to Flecks that the Flecks IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination.

11.4 Survival

This Section 11.4 and Sections 1, 5, 6, 7, 8, 9, 10, 11.3, and 12 survive any termination or expiration of this Agreement.

12. Miscellaneous

12.1 Entire Agreement

This Agreement, together with any other documents incorporated herein by reference (including the DPA), constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

12.2 Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the Parties at the address set forth on the Order (or to such other address that may be designated by the Party giving notice from time to time in accordance with this Section). Notices may be delivered by personal delivery, nationally recognized overnight courier, or email (with confirmation of transmission) or certified or registered mail. A Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.

12.3 Force Majeure

In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

12.4 Amendment and Modification

Flecks may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Flecks will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Platform after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Subscription Period or, if Customer enters into a new Order, as of the date of execution of such Order.

12.5 Waiver

No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.

12.6 Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.7 Governing Law; Submission to Jurisdiction

This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement must be instituted in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts.

12.8 Assignment

Customer may not assign any of its rights or delegate any of its obligations hereunder, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Flecks. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

12.9 Export Regulation

The Platform utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Platform or the underlying software or technology to any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.

12.10 US Government Rights

Each of the Documentation and the software components that constitute the Platform is a “commercial item” as that term is defined at 48 C.F.R. § 2.101. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Platform and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

12.11 Equitable Relief

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.

12.12 Publicity

Flecks may identify Customer as a user of the Platform and may use Customer’s name, logo, and other trademarks in Flecks’s customer list, press releases, blog posts, advertisements, and website. Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.