Service Terms of Use

These Terms of Use, as amended from time to time, together with any other terms, agreements and policies, and orders referenced herein (which constitute an integral part hereof) (these “Terms”) constitute a legally binding agreement between Flarion Inc. and/or its affiliates  (”Flarion”) and the customer executing or otherwise accepting these Terms or the Order which refers to these Terms (respectively, the “Customer” and the “Order”). The Terms govern the way the Customer and its users (each, a “User”) may install, integrate, use, and access Flarion’s Service (as defined below) in a subscription model. These Terms may be accepted, and the Order may be completed and entered-into, in various ways, including online form, through a third-party marketplace, an offline form delivered by Customer to Flarion, including via email or any other electronic or physical delivery mechanism. The use of Flarion’s Service shall be deemed acceptance of these Terms. When these Terms are accepted online on behalf of a legal entity, the person accepting these Terms represents and warrants that he/she has the authority to bind such entity to these Terms.

1. The Service
   
   1. Subscription to the Service. Flarion's service is data processing optimization service, as further described on Flarion’s website and documentation (the “Service”). The subscription to the Service is provided in a hybrid model, including installing certain portions of the Service on the Customer’s servers or cloud environment (the “Customer Server”), and a hosted-software-as-a-service monitoring and telemetry user-interface. The right to install, use, and access the Service, is granted solely to the Customer and its Users and only for the Customer’s internal use and not for resale or provision of the Service to third parties, all as permitted by and subject to these Terms (the “Purpose”).
   2. Subscription Limitations. The right to install, use and access the Service, is limited, non-transferable, non-exclusive, non-assignable, and non-sub-licensable. The Service may only be used by individuals who (i) can form legally binding contracts under applicable law, and (ii) are authorized to use the Service under Customer’s procedures and policies (if any).
   3. Modification or Discontinuation of the Service. Flarion may change or update the Service at any time, including the availability of any feature, content, or database, and may impose limitations or restrictions on certain features and services. In case of a material change, Flarion will notify the Customer by posting an announcement on Flarion’s website, through the Service, or by email. Changes are not expected to have an adverse effect on the Customer's use of the Service, however, in case of a material adverse effect on the Customer’s use, Flarion and the Customer shall negotiate in good faith the ramifications of such change. Furthermore, Flarion may offer alternative or additional features to certain Customers, that may not be offered to others.
   4. Service Level Agreement. The Customer is entitled to technical support and uptime commitment in accordance with Flarion’s Service Level Agreement available at https://www.flarion.io/legal/service-level-agreement (the “SLA”).
2. Free Tier
   
   1. Free Tier. Flarion may offer, from time to time, certain features of the Service for limited free use (“Free Tier”). The terms of the Free Tier and the limitations imposed on the Free Tier shall be as set forth in Flarion’s website.  
   2. Governing Terms of Free Tier Services. The Free Tier Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Free Tier Services (i) Free Tier Services are licensed hereunder on as “As-Is” “As Available” basis, with no warranties, express or implied, of any kind; (ii) Flarion reserves the right to modify, cancel and/or limit the Free Tier Services at any time and without liability; (iii) The indemnity undertakings by Flarion set forth in Section ‎‎14.1 herein shall not apply; and (iv) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF FLARION, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS AND/OR THE FREE TIER SERVICES, EXCEED US$50. Flarion makes no promises a Free Tier Services will be made available to the Customer or generally available.
3. Registration to the Service
   
   1. Account Registration. In order to use the Service, each User may be requested to register and create an account (the “Account”), at Flarion’s discretion, which may be amended from time to time. In the event that a User is requested to register and is the first user of the Service on behalf of a Customer, such User may be automatically be considered the Customer’s administrator (the “Administrator”), unless and until such role is transferred to another User of the Customer. The Administrator, if designated, is considered a representative of the Customer for any purpose. Flarion reserves the right to refuse a User’s registration or to block the User’s access to the Service, in case of suspected violation of applicable law or breach of these Terms.
   2. Account Information. As part of the registration process, Users may be required to provide Flarion with certain personal information (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. The Customer is responsible that each User shall provide Flarion with accurate, complete, and updated registration information. Customer shall notify Flarion immediately of any breach of security or unauthorized use of an Account known to Customer. Customer is solely responsible and liable for the activity that occurs in the Accounts and for the use of the Service by its Users and for any losses, damages, liability, and expenses incurred by Flarion or a third party, due to any unauthorized use of the Account by either Customer or any other User or third party on Customer’s behalf. Customer shall (i) not allow anyone other than Customer’s Users to access and use the Accounts; (ii) keep, and ensure that Users keep all Account login details and passwords secure at all times; (iii) ensure that the login details for each User may only be used by that User, and that multiple people may not share the same login details.
   3. Administrator Control. The Administrator shall have control over all Accounts and may have the ability to: (i) access information about Users’ activities; and (ii) monitor and manage Users’ Accounts. The Administrator may specify additional Users who will gain Administrator privileges.
   4. Administrator Responsibility. The Administrator is responsible for the internal management and administration of the Service within the Customer’s Accounts. In addition, the Administrator is responsible for: (i) maintaining the confidentiality of the passwords of the Accounts; (ii) designating those individuals who are authorized to access the Accounts; and (iii) performing monitoring to ensure the protection of Users’ privacy and compliance with applicable law.
4. Customer’s Obligations
   
   1. Cooperation. Customer shall provide Flarion with all reasonable cooperation, shall comply in a timely and efficient manner, and be responsible and liable for the Users’ compliance with these Terms, the Order, and all applicable laws and regulations. Without derogating from the aforementioned, Customer shall provide Flarion with the resources and fulfill the responsibilities outlined in the Order. In the event of any delays by the Customer, Flarion may adjust any agreed timetable or delivery schedule as reasonably necessary.
   2. Infrastructure. Customer is solely responsible for obtaining, maintaining, and operating the User’s devices, and Servers, and any related equipment, hardware, software, backup systems, security systems, and measures or ancillary services (the “Customer’s Infrastructure”) necessary to access and use the Service and maintain such devices and Customer Servers secure in all respects. Customer shall be solely responsible and liable for any fees charged by third parties in connection with the Customer’s Infrastructure. Customer shall not change its data processing infrastructure without providing at least 14 days prior notice to Flarion, and Customer acknowledges that Flarion may not support such change, or require installing another version of the Service. Customer shall be solely responsible for procuring and maintaining its network connections and communications links and for all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet. Flarion shall have no responsibility or obligation in connection with the above. Without limiting the generality of the aforementioned, Flarion is not responsible for any delays, delivery failures, or any other loss or damage resulting from the hosting, storage, or transfer of software or data over communications networks and facilities, including the internet, and to the performance of any third-party communication, hosting or storage provider, and the Customer acknowledges that the Service may be subject to interruptions, limitations, delays and other risks associated with the use of such hosting, storage and communications facilities.
   3. Responsibility to Third Parties. The Customer is solely responsible for responding to any claims, requests, and demands by the Users or any other third party related to the Customer. Flarion will, to the extent allowed by law, promptly notify Customer of its receipt of a User or such related third-party claim, request, or demand and comply with Customer’s reasonable requests regarding the handling of such claim, request, or demand. Customer is responsible for all acts or omissions of Users and their use of the Service.
5. Customer Data
   
   1. Customer Data. While using the Service, certain code, information, and data may be uploaded or transferred to the Service to be processed by the Service on the Customer’s behalf (the “Customer Data”). As between the Customer and Flarion, all rights in the Customer Data shall remain with The Customer.
   2. License to Customer Data. The Customer hereby grants Flarion and its Sub-processors (as defined below) an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, use, process, copy, download, store, distribute, and display the Customer Data, to maintain, develop and provide the Service and as required to resolve technical and security problems or otherwise as permitted by these Terms or in writing by Customer.
   3. Representation and Warranties regarding Customer Data. Customer represents and warrants that (i) Customer owns or has all the necessary licenses, rights, consents, approvals and permissions to grant Flarion the aforementioned right and license and to authorize Flarion and its Sub-processors to access, use, process, copy, download, store, distribute and display the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party; (ii) any Customer Data and any use thereof do not and shall not violate any applicable laws, including those related to export controls regulations governing such Customer Data; (iii) the Customer is solely responsible for any Customer Data it access, uses, transmit or display while using the Service, and the consequences of such use; and (iv) no sensitive data that is protected under special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Service.
   4. Rights to Use Performance and Aggregated Data. Notwithstanding anything to the contrary, Flarion shall have the right to collect, retain, disclose, use, and analyze data relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and metadata derived therefrom and/or logs that the Customer runs through the Service), and Flarion will be free to use such data to improve, customize and enhance the Service and for other development, diagnostic and maintenance purposes in connection with the Service. Such data, where it does not enable identification of an individual, the Customer, and/or Users, including aggregated data, metadata, and analytic information, shall not be regarded as Customer Data and may be used freely by Flarion.
   5. Limited Warranty. Other than Flarion’s security and data protection obligations expressly outlined in Section 7 herein, Flarion assumes no responsibility or liability for Customer Data, and the Customer will have the sole responsibility for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that Flarion shall not monitor and/or moderate the Customer Data.
   6. No Backup. Customer acknowledges and agrees that the Service does not operate as an archive or file storage service for Customer Data, and therefore Customer is solely responsible for the backup of Customer Data.
6. Intellectual Property and Right to Use
   
   1. Flarion Intellectual Property. All rights, title, and interest in the Service, including without limitation, any content, materials, software, know-how, data files, documentation, code, SDK, API, design, text, media, methodologies, artwork, names, logos, trademarks and services marks (excluding Customer Data), any related or underlying technology and any updates, new versions, modifications, improvements, developments or derivatives thereof, belong to Flarion and its licensors (including if such improvements and developments are created as a result of processing the Customer Data). These Terms do not convey to the Customer or the Users any interest in or to the Service, except for a limited right of use as set forth herein, terminable in accordance with these Terms.
   2. Prohibited Use. Customer and its Users may not, and may not permit or aid others to: (i) use the Service for any purpose other than the Purpose; (ii) copy, modify, alter, translate, emulate, create derivative works based on, or reproduce the Service; (iii) give, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these Terms to any third party, or use the Service in any service bureau arrangement; (iv) reverse engineer, de-compile, decrypt, revise or disassemble the Service or any part thereof, or extract source code from the object code of the Service; (v) access or use the Service in order to build a competing product or service or for benchmarking purposes; (vi) bypass any measures Flarion may use to prevent or restrict access to the Service, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Service; (vii) access the Service or Flarion’s systems via any means other than through the interface provided by Flarion, or via automated means, including by crawling, scraping, caching or otherwise; (viii) use the Service in any manner that is illegal or not authorized by these Terms; (ix) take any action that imposes or may impose an unreasonable or disproportionately large load on Flarion’s (or Flarion’s service providers') infrastructure; (x) interfere or attempt to interfere with the integrity or proper working of the Service; (xi) remove, deface, obscure, or alter Flarion’s or any third party's identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service; (xii) provide any third party access to the Service; or (xiii) provide public access to results obtained by the Service. Customer will be solely and fully liable for any acts, omissions, or violation of these Terms by its Users and for any losses, damages, liability, and expenses incurred by Flarion or a third party due to any unauthorized use of the Service by the Customer or by any of its Users or third party on behalf of the Customer.
   3. Feedback. Customer shall make commercially reasonable efforts to notify Flarion of any design or functional errors, anomalies, and problems associated with the Service discovered or brought to its attention by its Users, and may provide Flarion suggestions, comments, or any other feedback regarding the Service (the “Feedback”). Flarion may use any Feedback at its sole discretion, free from any right of the Customer or any third party and without any obligation towards the Customer. The Customer hereby grants to Flarion an irrevocable, perpetual, non-exclusive, royalty-free, worldwide right and license to use the Feedback and any intellectual property rights related thereto, and explicitly and irrevocably waives any claims associated therewith. Customer shall not provide Flarion with any Feedback which infringes any third-party’s right.
   4. Intellectual Property Infringements. In the event that Flarion believes that the Service, or any part thereof, may infringe intellectual property rights of third parties, then Flarion may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Service; (ii) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if Flarion determines that the foregoing remedies are not reasonably available, then Flarion may require that use of the (allegedly) infringing Service (or part thereof) shall cease.
7. Privacy, Security
   
   1. Privacy Policy. The Customer acknowledges and agrees that the use of the Service by the Customer and the Users is governed by Flarion’s Privacy Policy available at: https://www.flarion.io/legal/privacy (“Privacy Policy”). The Privacy Policy shall constitute an integral part of these Terms.
   2. Security. Company agrees, during the Subscription Term, to implement reasonable industry-standard, technical, and organizational security measures to protect Customer Data.
8. Third-Party Software and Services
   
   1. Free Software. The Service may include third-party “open source” or “Free Software” components that are subject to third-party terms and conditions (“Third-Party Terms”). If there is a conflict between any Third-Party Terms and these Terms, then the Third-Party Terms shall prevail, but solely in connection with the related third-party component. Flarion represents and warrants that it complies with the notice and attribution aspects of the Third-Party Terms. The license terms, copyright notices, and available source code concerning Third-Party Terms can be found at: https://github.com/apache/datafusion, https://github.com/apache/arrow, https://github.com/apache/datafusion-comet, and https://github.com/pola-rs/polars.
   2. Other Products and Services. The Service may rely on, integrate with, and contain links to other third-party services, or may enable Customer and its Users to access, engage, and procure certain services and products provided by third parties (the “Third-Party Services”). Customer acknowledges and agrees that regardless of how such Third-Party Services may be presented or offered to Customer, Flarion does not endorse any such Third-Party Services or shall be in any way responsible or liable with respect to any such Third-Party Services. BY ACCESSING AND/OR USING THE THIRD-PARTY SERVICES, THE CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD-PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD-PARTY SERVICES ARE IN COMPLIANCE WITH CUSTOMER’S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION. FLARION BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD-PARTY SERVICES’ OPERABILITY OR INTEROPERABILITY WITH FLARION’S SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES.
9. Subscription; Payments
   
   1. Subscription Term. The Service is provided on a subscription basis for the term specified in the Customer’s Order, and in no such term is outlined in the Order, for an indefinite period until terminated pursuant to this Section ‎9 (the “Subscription” and the “Subscription Term”). The Subscription Term for Free Tier shall be determined by Flarion at its sole discretion and may be terminated by Flarion at any time at its sole discretion.
   2. Subscription Auto-Renewal. In case the Subscription is for a limited Subscription Term, to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription shall automatically renew by default, unless canceled by either the Company or the Customer at least 30 days prior to its expiration, for a renewal period equal in time to the original Subscription Term (excluding any renewal period) at the then applicable Fee.
   3. Fees. The Service is provided on consumption-based pricing pursuant to the fees and payment terms set forth in the Order (the “Fees”). Unless expressly indicated otherwise, Fees are stated in US dollars. Customer hereby authorizes Flarion, either directly or through Flarion’s payment processing services, to charge the Fees via Customer’s selected payment method, upon the due date. Unless expressly set forth herein, or required otherwise by mandatory law, the Fees are non-cancelable and non-refundable. Flarion reserves the right to change the Fees at any time, upon notice to Customer, 60 days in advance. Delinquent payments may bear compounded interest, as of the payment due date and until paid in full, at a rate equal to the lower of: (i) 1.5% per month, or (ii) the highest rate permitted by law. The aforesaid shall not derogate from any other right or remedy to which Flarion may be entitled. Customer will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by Flarion in collecting any payment.    
   4. Commitment Pricing. Flarion may offer prices based on a commitment to a minimum level of consumption of the Service (the “Minimum Commitment Price”). If the Customer agrees to a Minimum Commitment Price, the Customer shall pay the entire Minimum Commitment Price regardless of the actual consumption or use of the Services (the “Commitment Term”), in accordance with the payment schedule set forth in the Order Unless expressly set forth herein, or required otherwise by mandatory law, the Minimum Commitment Price is non-cancelable and non-refundable.
   5. Taxes. The Fees are exclusive of any taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties (the “Taxes”), except for income tax imposed on Flarion. If Customer is located in a jurisdiction that requires Customer to deduct or withhold Taxes or other amounts from any amounts due to Flarion, Customer shall promptly notify Flarion in writing and Flarion shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be “grossed up” and added on top of the Fees payable by Customer.
   6. Payment through Reseller. If Customer purchased the Service from a reseller or distributor authorized by Flarion (“Reseller”), then in case of any conflict between these Terms and the agreement entered between Customer and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between Customer and Flarion, these Terms shall prevail, unless agreed by Flarion in writing otherwise. Any rights granted to Customer in such Reseller Agreement, which are not contained in these Terms, apply towards the Reseller, and Flarion shall not incur any obligation or liability in connection therewith. For clarity, the Customer’s and Customer Users’ access to the Service is subject to Flarion’s receipt from the Reseller of the payment of the applicable fees paid by the Customer to the Reseller. Customer hereby acknowledges that at any time, at Flarion’s discretion, the billing of fees may be assigned to Flarion, such that Customer shall pay Flarion directly.  
10. Termination
    
    1. Termination for Cause. A breach of obligations by either party hereto which is not cured within 15 days from receiving notice thereof, shall entitle the non-breaching party to immediately terminate these Terms by written notice. Notwithstanding, if a party files for petition or action for relief under any bankruptcy, reorganization, insolvency, or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes or becomes subject to any action in furtherance of any of the foregoing, the other party will be entitled to terminate these Terms immediately by written notice.
    2. Termination or Suspension by Flarion. Flarion may terminate or suspend Customer’s use of and access to the Service (or any part thereof) immediately, without prior notice or liability, if Customer breaches, or fails to comply with, any of the provisions contained in these Terms, and in each of the following events: (i) Flarion believes, in its sole discretion, that Customer or any third party is using the Service in a manner that may impose a security risk, may cause harm to Flarion or any third party, and/or may create any liability to Flarion or any third party; (ii) if Flarion believes, in its sole discretion, that Customer or any third party is using the Service in breach of these Terms or applicable laws; or (iii) if Flarion is unable to charge the Fees through Customer’s approved payment means or if any payment is or is likely to become overdue. The aforementioned rights are in addition to any rights and remedies that may be available to Flarion in accordance with these Terms and/or under any applicable law.
    3. Termination by Customer. In case the Subscription is for a limited Subscription Term Customer may terminate its Subscription to the Service by canceling its Subscription, whereby termination will take effect at the end of the then-current Subscription Term and shall not derogate from Customer’s obligation to pay the applicable Fees for the Subscription Term. In case no limited Subscription Term is defined in the Order, Customer may cancel its Subscription at any time upon 30 days prior written notice.
    4. Effect of Termination. Unless expressly indicated otherwise in these Terms, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Fees. Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to Customer and the Users hereunder shall terminate, and Customer shall cease to have access to the Service and any Customer Data and shall remove any Service components from Customer’s systems, cloud environment and any device on which such components were installed. In addition, Customer shall return or destroy, at Flarion’s choice, Flarion’s Confidential Information (as defined below) then in Customer’s possession.
    5. Right to Receive Customer Data. If requested by the Customer in writing no later than 30 days following termination, Flarion shall provide the Customer with Customer Data in its possession, in a standard format and media, and delete all Customer Data in its possession. Flarion may retain automatically created backup copies and Customer Data which are required to be maintained by it under Flarion’s data retention policies. Customer acknowledges that following the aforesaid 30-day term following termination of these Terms, Flarion may delete all Customer Data without retaining any copy.
    6. Survival. All the provisions of these Terms which by their nature should survive termination (including, without limitation, confidentiality, ownership and intellectual property, warranty disclaimers limitations of liability, and indemnification) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these Terms shall not relieve Customer from any obligation arising or accruing prior to such termination or limit any liability which Customer otherwise may have to Flarion.
11. Confidentiality
    
    1. Confidential Information. For purposes of these Terms, the term “Confidential Information” shall mean any non-public business, product, technology, and marketing data and information, whether written, oral, or in any other medium disclosed or otherwise provided by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information which the Receiving Party can prove: (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no act or omission of the Receiving Party in breach of these Terms; (b) is already known to the Receiving Party at the time of disclosure; (c) is disclosed to the Receiving Party free from confidentiality obligations by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; or (d) was or is independently developed by the Receiving Party without use of or reliance upon the Confidential Information.
    2. Confidentiality Obligations. Receiving Party undertakes and warrants that: (i) it shall hold the Confidential Information of Disclosing Party in confidence and shall take all reasonable steps to safeguard and protect the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature; (ii) it shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to those of its employees who have a need to know such Confidential Information for the purpose of fulfilling these Terms and provided that such employees are bound by written confidentiality obligations which are at least as restrictive as those contained herein; (iii) it shall not copy or use the Confidential Information for any purpose except to the extent required to perform its obligations, or exercise its rights, hereunder, whilst maintaining the Disclosing Party’s interests; and (iv) if the Receiving Party is requested or legally compelled to disclose any Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, the Receiving Party shall make best efforts to provide the Disclosing Party prompt notice thereof, and, at the request and expense of the Disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested. Receiving Party’s obligations concerning Confidential Information shall expire five (5) years from the date of termination or expiration of the last Subscription Term unless under applicable law a longer period of protection applies.
    3. Right to Disclose. Flarion reserves the right to access, read, preserve, and disclose any information that it obtains in connection with the Service as Flarion reasonably believes necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena, or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Customer’s support requests, and/or (v) protect the rights, property or safety of Flarion, its users or the public.
12. Warranty and Disclaimer

Flarion represents and warrants that (a) the Service will perform in accordance with the associated documentation in all material respects, and in accordance with the SLA; (b) it will use best commercial efforts not to introduce any code, files, scripts, agents or programs intended to harm, including, viruses, worms, time bombs, or Trojan horses, into Customer’s systems.

EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICE AND ANY RELATED SERVICES ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE, REGARDING THE SERVICE AND CUSTOMER’S USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY OR NON-INFRINGEMENT. FLARION DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR WILL MEET THE CUSTOMER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY PROCESS, ACTION, INFORMATION, OR CONCLUSION OBTAINED BY THE CUSTOMER AS A RESULT OF THE USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, EFFECTIVE, PROPER, LAWFUL OR OTHERWISE IN ACCORDANCE WITH THE CUSTOMER’S EXPECTATIONS.

CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND FLARION’S SOLE LIABILITY FOR BREACH OF THIS WARRANTY, ARE FLARION’S COMMERCIALLY REASONABLE EFFORTS TO REPAIR THE SERVICE IN ACCORDANCE WITH FLARION’S SUPPORT OBLIGATIONS AND CUSTOMER’S ELIGIBILITY FOR SERVICE CREDIT UNDER THE SLA.

1. Limitation of Liability

NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

1. IN NO EVENT SHALL FLARION, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS, OR EMPLOYEES BE LIABLE UNDER ANY CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES; (II) LOSS OF OR DAMAGE TO CUSTOMER’S SYSTEMS, DEVICES, DATA, INFORMATION, GOODWILL, PROFITS, SAVINGS, OR PURE ECONOMIC LOSS; (III) THE FAILURE OF INDUSTRY STANDARD SECURITY MEASURES AND PROTECTIONS; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; REGARDLESS OF (A) WHETHER FLARION, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE; OR (B) THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).
2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLARION’S AGGREGATE AND CUMULATIVE LIABILITY FOR ALL DIRECT CLAIMS, DAMAGES, AND LOSSES (WHETHER IN CONTRACT, TORT, OR OTHERWISE), IS LIMITED TO THE FEES PAID TO FLARION FOR USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CAUSE OF THE CLAIM.

1. Indemnification
   
   1. By Flarion. Flarion hereby agrees to defend and indemnify Customer against any damages awarded against Customer by a court of competent jurisdiction or paid in settlement, in connection with a third-party claim, suit, or proceeding that the grant of right to use the Service within the scope of these Terms infringes any valid U.S. patent. Flarion shall have no obligations or liability hereunder in case (i) the Service is used in an unlawful manner or in violation of these Terms; (ii) features are provided at the request of the Customer; (iii) the Service is used in combination with other products, equipment, software, or data not provided by Flarion; (iv) the alleged infringement is resulting from processes developed by the Customer or at the Customer’s request within the Service; or (v) the alleged infringement is based on the Customer Data and any other content provided by Customer or its Users or use of the Service by the Customer. SECTIONS ‎‎6.4 AND ‎‎14.1 STATE FLARION’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY FLARION AND/OR THE SERVICE AND UNDERLYING TECHNOLOGY.
   2. By Customer. Without derogating from Flarion’s rights under these Terms and applicable law, Customer hereby agrees to defend and indemnify Flarion against any damages awarded against Flarion by a court of competent jurisdiction or paid in settlement, in connection with (i) a third party claim, suit or proceeding that use of the Customer Data and any other content provided by Customer and/or the Users, or the use of the Service by the Customer and/or the Users infringes any intellectual property rights of a third party; (ii) the use or misuse of the Service by Customer, the Users or any third party using an Account.
   3. General. The defense and indemnification obligations of the indemnifying Party under this Section ‎14 are subject to (i) the indemnifying Party being given prompt written notice of the claim; (ii) the indemnifying Party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified Party providing cooperation and assistance, at the indemnifying Party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying Party’s defense of, or response to, such claim.
2. Miscellaneous
   
   1. Export Control. The Service may be subject to Israeli, U.S., or foreign export controls, laws and regulations (the “Export Controls”), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Service (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use of the Service.
   2. Customer’s Reference. The Customer acknowledges and agrees that Flarion has the right to use Customer’s name and logo to identify the Customer as a customer of Flarion or a user of the Service, on Flarion’s website, marketing materials, or otherwise by public announcements. The Customer may revoke such right, at any time, by contacting Flarion at: legal@flarion.io. The publication of any additional content related to the Customer’s use of the Service (other than mere reference to the Customer as set forth above) shall require the Customer’s prior approval (which may not be unreasonably withheld or delayed). Customer agrees that Flarion will publish a case study on the Customer’s use of the Service, subject to the Customer’s approval of the content of the case study (which may not be unreasonably withheld or delayed).
   3. Force Majeure. Neither Flarion nor Customer will be liable for any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, pandemic, terrorism, and governmental action.
   4. Governing Law; Jurisdiction. These Terms and their performance shall be governed by the laws of the State of Delaware, without regard to conflict of laws’ provisions that would result in the application of the laws of any other jurisdiction. The parties hereto submit the exclusive jurisdiction to the courts of the State of Delaware.
   5. Class Action Waiver. WHERE PERMITTED UNDER APPLICABLE LAWS, THE CUSTOMER AND FLARION AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS OWN CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and Flarion agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
   6. Relationship of the Parties; No Third-Party Beneficiaries. The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to these Terms.
   7. General. The headings used in these Terms are for convenience only and should in no case be considered in construing these Terms. The schedules and exhibits attached hereto are incorporated herein by this reference.
   8. Entire Agreement. The Agreement constitutes the entire agreement between Customer and Flarion concerning Customer’s use of the Service, and supersede all prior or contemporaneous understandings regarding such subject matter.
   9. Assignment. Flarion may assign at any time any of its rights and/or obligations hereunder to any third party without Customer’s consent. Customer may not assign any of its rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Flarion, and any attempt by a Customer to do so shall be deemed null and void.
   10. 15.10.Notice. All notices or reports permitted or required under the Agreement shall be made by personal delivery, by express courier service (such as FedEx or UPS) that requires proof of delivery, certified or by registered mail, return receipt requested, or by electronic mail, and shall be deemed effective (a) if mailed, 5 business days after mailing; (b) if made by personal delivery or sent by messenger or express courier service, upon delivery; and (c) if sent via electronic mail, upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt.
   11. 15.11.Severability. If a court of competent jurisdiction finds any provision of the Agreement to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable, and legal.
   12. 15.12.No Waiver. The failure of Flarion to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed by Flarion in writing.

For any questions or queries about these Terms or the Service in general, please do not hesitate to contact us at the following e-mail address: legal@flarion.io.

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