TERMS & CONDITIONS

THIS AGREEMENT GOVERNS YOUR (“CUSTOMER”) ORGANIZATION’S ACQUISITION AND USE OF FLEXCOMPUTE, INC. (HEREAFTER “FLEXCOMPUTE”) SOFTWARE (“SOFTWARE”) AND SOFTWARE SERVICES LOCATED AT WWW.FLEXCOMPUTE.COM INCLUDING ANY AND ALL SUBDOMAINS (“SERVICES”).

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, OR IF YOU ARE ACCESSING THE SERVICES AS PART OF AN EDUCATIONAL LICENSE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR EDUCATIONAL USE.

EDUCATIONAL LICENSES: YOU AGREE: (I) YOUR USE OF AN EDUCATIONAL LICENSE IS ALSO SUBJECT TO TERMS BETWEEN FLEXCOMPUTE AND THE EDUCATIONAL INSTITUTION WHICH PROVIDED YOU ACCESS TO THE SERVICES (IF APPLICABLE), AND YOU AGREE YOU WILL ABIDE BY ALL SUCH TERMS; (II) EDUCATIONAL LICENSES MAY NOT BE USED FOR COMMERCIAL PURPOSES; (III) EDUCATIONAL LICENSES ARE NON-TRANSFERABLE.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO YOU AND/OR SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Customer may not access the Services if Customer is a direct competitor of Flexcompute, except with Flexcompute’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality.

Customer’s use of the Services constitutes Customer’s agreement to these terms and these terms are effective between Customer and Flexcompute as of the date Customer signs an Order Form or first use the Services, whichever is earlier.

1. Agreement

This Agreement between Flexcompute and Customer governs Customer’s access or use of all Flexcompute Products and Services.

2. Definitions

Unless defined elsewhere in this Agreement, the capitalized terms utilized in this Agreement are defined below:

1. 2.1 “Agreement” means this Flexcompute Master Subscription Agreement, each addendum attached, and any Order Form(s) between Flexcompute and Customer for the provision of Flexcompute Products or Services.
2. 2.2 "Authorized Reseller" means a reseller, distributor or other third party authorized by Flexcompute to sell Flexcompute Products or Services.
3. 2.3 "Authorized User" means (a) in the case of an individual accepting this Agreement on such individual's own behalf, such individual; or (b) an individual authorized by Customer to use the Flexcompute Products or Services for Customer's business purposes in accordance with the terms and conditions of this Agreement, and to whom Customer has supplied user credentials or user access. Authorized Users may include employees, consultants, contractors and agents of Customer, and, if permitted in the Documentation, third parties with which Customer transacts business.
4. 2.4 "Confidential Information" means information and/or materials provided by one party ("Discloser") to the other party ("Recipient"), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: this Agreement, a party's pricing, product roadmap, product plans, or strategic marketing plans, algorithms, business plans, customer lists, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, processes, products, research, specifications, software, source code, trade secrets or any other non-public information relating to the Service including the Documentation. Exclusions. "Confidential Information" does not include information that: (a) is wholly and independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (b) is lawfully received free of restriction from another source having the right to furnish such information; (c) is or becomes lawfully in the public domain other than through a breach of this Agreement; (d) was known by the Recipient prior to disclosure; (e) Discloser agrees in writing is free of such restrictions; or (f) is generally disclosed by the Discloser to third parties without a duty of confidentiality. The Parties acknowledge and agree that the Flexcompute Products, Services, and Documentation, and all pricing information shall be the Confidential Information of Flexcompute.
5. 2.5 "Consulting Services" means any consulting services for Flexcompute Products performed by Flexcompute for Customer under the terms of this Agreement.
6. 2.6 "Content" means information, data, materials, media or other content provided by or on behalf of Customer and/or its Authorized Users for use with Flexcompute Products or Services, including data from Customer's applications or from third party applications enabled by Customer or an Authorized User.
7. 2.7 "Customer" means: (i) an individual or entity that has entered into this Agreement by electronically accepting the terms or downloading, installing, accessing or using the Flexcompute Products or Services; or (ii) where an Order Form has been executed, the entity identified on the Order Form.
8. 2.8 "Delivery Date" means the date on which access to the Flexcompute Products is initially made available (via download or otherwise) to Customer or to the Authorized Reseller as applicable, which date may be specified in an Order Form.
9. 2.9 "Documentation" means the then-current technical and user documentation for the Flexcompute Products, including the applicable product descriptions available at www.flexcompute.com
10. 2.10 "Education Services" means any training or education services performed by Flexcompute for Customer, including educational content provided by Flexcompute online or by an instructor, under the terms of this Agreement.
11. 2.11 "Export Control Laws" means export control laws and regulations of the U.S., E.U., and other foreign governments, as well as regulations and sanctions declared by such governments, including the U.S. Department of the Treasury Office of Foreign Assets Control, the U.S. Department of Commerce, the Council of the E.U. and their counterparts under applicable law, including all end user, end use and destination restrictions.
12. 2.12 "IP Claim" means a claim brought by a third party alleging that the Flexcompute Products, as delivered by Flexcompute and used as authorized under this Agreement, infringes upon any third-party copyright, trademark or a patent.
13. 2.13 "Order Form" means an order form, statement of work or other written document pursuant to which Customer orders Flexcompute Products or Services and is accepted by both Parties.
14. 2.14 "Party" or "Parties" means Flexcompute and Customer, individually and collectively, as the case may be.
15. 2.15 "Flexcompute Cloud" means any subscription-based, SaaS solution provided and managed by Flexcompute or its affiliate.
16. 2.16 "Flexcompute Marks" means Flexcompute's trademarks, service marks, trade names, logos, and designs, whether or not specifically recognized, registered or perfected, including without limitation, those listed on Flexcompute's website and on the Flexcompute Products.
17. 2.17 "Flexcompute Products" or "Products" means the Software and Flexcompute Cloud offerings provided by Flexcompute and its affiliates to Customer (including any software client provided by Flexcompute that is downloaded and/or installed by Customer). Flexcompute Products do not include early release, beta versions or technical previews of product offerings.
18. 2.18 "Services" means any Consulting Services and Education Services performed by Flexcompute for Customer under the terms of this Agreement. Services do not include Support.
19. 2.19 "Software" means the generally available release of Flexcompute software made available under this Agreement, in object code form, as initially provided or made available to Customer, as well as updates to the software that Flexcompute elects to make available at no additional charge to all of its customers that subscribe to Support for the software.
20. 2.20 "Support" means Customer technical support, including access to updates for the Flexcompute Products, which are provided by Flexcompute or its affiliates to Customer as part of a paid subscription or support contract.

3. Customer Rights and Responsibilities

1. 3.1 Flexcompute Products. Subject to and conditioned upon Customer's compliance with the terms and conditions of this Agreement, Flexcompute grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable right to access and use the Flexcompute Products solely for Customer's internal business operations, provided any use of Flexcompute Products shall be: (i) in accordance with the Documentation and this Agreement; and (ii) for the scope, term and quantity limits purchased.
2. 3.2 Troubleshooting and Support.
   1. 3.2.1 Troubleshooting and Technical Support. By using Flexcompute Products, Customer acknowledges and agrees that in the event of troubleshooting activities, Customer questions, or to respond to technical support requests, Flexcompute's authorized personnel may access, review, and/or modify Content, including but not limited to, error logs, system configurations, and related information. The primary purpose of such access is for the purpose of diagnosing and resolving any technical issues, improving Customer's experience with the Products, and improving the Products' performance.
3. 3.3 Services. Flexcompute may provide Consulting Services or Education Services to Customer pursuant to this Agreement, an Order From, or any applicable Statement of Work.
4. 3.4 Use Restrictions.Customer will not, nor permit or authorize anyone to:
   1. 3.4.1 distribute, convey, lend, lease, share, sell, transfer, sublicense, rent, or time share any of the Flexcompute Products, or any of its components or product keys, or permit third parties to download or install any Software;
   2. 3.4.2 copy, decompile, disassemble or reverse engineer or otherwise attempt to extract or derive the source code or any methods, algorithms or procedures from the Flexcompute Products, except as otherwise expressly permitted by applicable law, or modify, adapt, translate or create derivative works based upon the Flexcompute Products;
   3. 3.4.3 alter or circumvent any product, key or license restrictions, or transfer or reassign a named user license or entitlement, in such a manner that enables Customer to exceed purchased quantities, defeat any use restrictions, or allows multiple users to share such entitlement to exceed purchased quantities;
   4. 3.4.4 use, offer, embed, sell, or otherwise exploit the Flexcompute Products in any managed service provider (MSP) offering; independent software vendor (ISV) offering; OEM Offering, platform as a service or integration platform as a service (PaaS or iPaaS) offering; service bureau; or other similar product or offering, including offering standalone Flexcompute Products as a hosted service. "OEM Offering" refers to Customer's use of Flexcompute Products to add capabilities or features to a commercial product or service for sale to a third party;
   5. 3.4.5 use the Flexcompute Products if Customer is a competitor, or use the Flexcompute Products in any manner that competes with Flexcompute or for any purpose that is to Flexcompute's detriment, including benchmarking, collecting and publishing data or analysis relating to the performance of the Flexcompute Products, or developing or marketing a product that is competitive with any Flexcompute Product or Service;
   6. 3.4.6 use the Flexcompute Products in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
   7. 3.4.7 interfere with or disrupt the integrity, operation, or performance of the Flexcompute Products or interfere with the use or enjoyment of it by others, including bypassing or breaching any security device or protection used for or contained in the Flexcompute Products;
   8. 3.4.8 use the Flexcompute Products, Documentation or Services for any purpose or application not expressly permitted by this Agreement and the applicable Documentation;
   9. 3.4.9 use the Flexcompute Products to transfer data to or from the Flexcompute Cloud in excess of five terabytes measured on a calendar month basis.
5. 3.5 Flexcompute Marks. Customer may not remove or obscure any Flexcompute Marks or other copyright, trademark or other proprietary notice displayed or included in the Flexcompute Products.
6. 3.6 Use. Customer shall ensure that use of Flexcompute Products and Services is at all times compliant with this Agreement and all applicable laws, including any Export Control Laws. Customer is solely responsible for compliance relating to the manner and purpose in which it chooses to use Flexcompute Products, including the use, transfer and processing of Content, and any industry specific requirements to which Customer may be subject. Any legal or regulatory compliance obligations of Customer shall remain Customer’s sole responsibility, and nothing herein is intended to shift such burden from Customer to Flexcompute. For the avoidance of doubt, the Flexcompute Products and Services are not intended to serve as a substitute for, or method of, compliance with any legal or compliance obligations to which Customer may be subject, and under no circumstances shall Flexcompute have any liability to Customer arising from Customer’s non-compliance with such obligations.
7. 3.7 Access. Customer is solely and directly responsible and liable (a) for maintaining the security of all keys, user IDs, passwords and other credentials, as well as for the assignment and deactivation of user credentials; (b) for all acts and omissions taken by its Authorized Users or under any of its keys or credentials; (c) to promptly notify Flexcompute of any unauthorized use or access and take all steps necessary to terminate such unauthorized use or access. Customer will provide Flexcompute with such cooperation and assistance related to any unauthorized use or access as Flexcompute may reasonably request.
8. 3.8 Content.
   1. 3.8.1 Customer Content Responsibilities. Customer acknowledges and agrees that it has the sole responsibility: (i) to administer user access to Flexcompute Products and the Content, (ii) for the input and administration of Content by an Authorized User for use with Flexcompute Products, including deletion of Content prior to expiration or termination of the subscription, (iii) to ensure Flexcompute has all rights necessary to host, store, adapt or integrate such Content as required to provide Flexcompute Products, and (iv) for maintaining Content on the systems from which they are sourced and maintaining backup copies of Content. Customer hereby represents and warrants on behalf of itself and its Authorized Users that it has all of the rights in the Content necessary for the use, display, publishing, sharing and distribution of the Content and that such use of the Content under this Agreement does not violate any third-party rights, legal obligations, laws, or this Agreement.
   2. 3.8.2 License. Customer grants Flexcompute a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Content for the purpose of: (a) providing the Services under this Agreement; and (b) to prevent or address technical or security issues and resolve support requests.
9. 3.9 Payment. Customer shall pay any fees due in accordance with the payment terms set forth in the Order Form. Payments are non-cancelable, non-refundable and non-creditable with no right of offset or suspension, except as otherwise expressly provided in this Agreement. Notwithstanding anything to the contrary in the Order Form, all subscription fees are due and owing for the full subscription period when purchased, and any arrangement permitting installment payments is provided to Customer solely as a courtesy that shall be deemed revoked by Flexcompute upon a material breach of this Agreement by Customer at Flexcompute’s discretion. Unpaid fees may be subject to a monthly late fee as set forth in an Order Form on any outstanding balance, or the maximum rate permitted by law, whichever is lower, and Customer shall reimburse Flexcompute for all reasonable costs and expenses incurred in collecting any late payments. Unless Customer objects in writing to any invoice from Flexcompute within sixty (60) days following its receipt of an invoice, Customer is deemed to have approved such invoice and may not subsequently dispute the same. Fees for Consulting Services or Education Services are exclusive of travel costs and expenses. If Customer fails to make any payment when due, Flexcompute may, without limiting its other rights and remedies, temporarily suspend Customer’s account or access to Flexcompute Products. Customer will remain responsible for all fees incurred before and during any suspension. Use of Flexcompute Products is subject to usage or quantity limits. If Customer’s use exceeds purchased quantity limits, Customer will be invoiced and shall pay for such additional quantities monthly in arrears at the fees which may be set forth in an Order Form.
10. 3.10 Taxes. Fees do not include taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, excise, withholding, value-added and other taxes and duties. and charges of any kind imposed by federal, state, or local governmental or regulatory authority on any amounts payable by Customer, exclusive of any tax on Flexcompute’s income. Customer shall directly pay any such taxes or duties assessed against it, unless Customer provides Flexcompute in a timely manner with a valid certificate of exemption or other evidence that items are not taxable.
11. 3.11 Authorized Resellers. If Customer purchases the Flexcompute Products or Services from an Authorized Reseller, Customer’s payment obligations are governed by Customer’s purchase agreement with the Authorized Reseller. Customer may not transfer the administration of any Flexcompute Product or Services purchased from an Authorized Reseller without the prior written consent of Flexcompute. Flexcompute may suspend and/or terminate Customer’s right to use the Flexcompute Products or Services if (i) Flexcompute fails to timely receive the fees due from the Authorized Reseller for Customer’s purchase of the Flexcompute Products or Services; or (ii) the Authorized Reseller terminates the order with Flexcompute relating to Customer’s purchase.
12. 3.12 Billing Information. Customer agrees to provide Flexcompute with accurate, timely and complete payment and invoicing information, including current contact information and tax identification numbers.
13. 3.13 Security. Customer agrees to maintain appropriate security, protection and backup copies of any Content. Flexcompute will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or backup any Content.

4. Warranties

1. 4.1 General Warranty. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full legal right and authority to enter into this Agreement; and (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
2. 4.2 Flexcompute Product Warranty. Flexcompute warrants that, when used as authorized under this Agreement, (a) Flexcompute Cloud will perform substantially in accordance with the applicable Documentation, and (b) the Software will, for a period of ninety (90) days from its Delivery Date, operate substantially in accordance with the applicable Documentation. Customer must assert any claim for breach of this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears.
3. 4.3 Services Warranty. Flexcompute warrants that the Services will be performed using reasonable care and skill consistent with generally accepted industry standards. Customer must assert any claim for breach of this warranty within thirty (30) days of Customer's receipt of the applicable Services.
4. 4.4 Exclusions. The warranties set forth in Sections 4.2 and 4.3 will not apply if the event giving rise to the warranty claim was caused by: (i) Customer's misuse or unauthorized use of or modifications to the Flexcompute Products or Services; (ii) third-party hardware, products, software or services, including Third-Party Materials and Third-Party Applications; (iii) any use of the Flexcompute Products or Services other than as permitted under this Agreement; (iv) Customer's failure to install the most recent update made generally available to customers; or (v) a Force Majeure Event. Customer's exclusive remedy, and Flexcompute's sole liability, with regard to any breach of the warranties set forth in Section 4.2 and 4.3 will be, at Flexcompute's option and expense, to either: (i) repair or replace the non-conforming Flexcompute Products or Services; or (ii) terminate the affected Flexcompute Products or Services and refund to Customer, on a pro rata basis, any unused, prepaid fees as of the termination effective date. Customer shall provide reasonable assistance to Flexcompute in support of its efforts to furnish a remedy for any breach of such warranties.
5. 4.5 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL FLEXCOMPUTE PRODUCTS, SERVICES, SUPPORT, DOCUMENTATION, AND OTHER INFORMATION, MATERIALS, AND SERVICES PROVIDED BY FLEXCOMPUTE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, FLEXCOMPUTE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, SERVICE PROVIDERS, LICENSORS, AND RESELLERS DO NOT WARRANT THAT: (I) FLEXCOMPUTE PRODUCTS, SERVICES, OR SUPPORT WILL BE UNINTERRUPTED OR ERROR FREE, (II) FLEXCOMPUTE PRODUCTS, SERVICES, OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (III) THE RESULTS OF USING FLEXCOMPUTE PRODUCTS, SERVICES, OR SUPPORT WILL MEET CUSTOMER'S OR ANY AUTHORIZED USER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, OR COMPLETE. IT IS CUSTOMER'S SOLE RESPONSIBILITY TO EVALUATE WHETHER A) USE OF THE OUTPUT OF ANY FLEXCOMPUTE PRODUCT OR SERVICE IS APPROPRIATE FOR CUSTOMER'S USE CASE, AND B) REVIEW AND INDEPENDENT VERIFICATION IS APPROPRIATE BEFORE USING OUTPUT. ANY PREDICTIVE OR ANALYTICAL SERVICES INCLUDED IN THE FLEXCOMPUTE PRODUCTS ARE FOR INFORMATIONAL PURPOSES ONLY AND NOT A GUARANTEE OF FUTURE RESULTS OR PERFORMANCE.

5. Intellectual Property Rights and Indemnification

1. 5.1 Ownership. Customer retains all right, title and interest in and to all Content. Flexcompute retains all right, title and interest in and to the Flexcompute Products, Services, Documentation and if applicable, all Education Services materials and Consulting Services deliverables, including all know-how, methodologies, designs and improvements to the foregoing, but excluding any Content incorporated into any such Services. Flexcompute hereby grants Customer a limited, non-exclusive license, non-transferable, and non-sublicensable right to use any Education Services materials and Consulting Services deliverables or work product solely in connection with Customer's authorized use of the Flexcompute Products and Services.
2. 5.2 Retention of Rights. No right, title or ownership of any proprietary or other rights related to the Flexcompute Products or Services is transferred or sold to Customer or any Authorized User. All intellectual property rights not explicitly granted to Customer are reserved and Flexcompute, its affiliates, and their respective suppliers or licensors, where applicable, retain all right, title and interest in and to the Flexcompute Products and Services, including all intellectual property rights embodied therein, as well as to all Flexcompute Marks. Customer is not obligated to provide Flexcompute with any suggestions or feedback about the Flexcompute Products or Services, but if Customer elects to do so, Flexcompute may use and modify this feedback for any purpose, including developing and improving the Flexcompute Products and Services, without any liability, time limitation, restriction, or payment to Customer.
3. 5.3 Indemnification. Flexcompute shall defend and indemnify Customer and its directors, officers, employees, agents, and permitted successors and assigns from any damages and costs awarded against Customer and its directors, officers, employees, agents, successors and assigns as a result of an IP Claim. Customer shall defend, indemnify and hold Flexcompute and its directors, managers, officers, employees, agents, resellers, licensors, affiliates, successors and assigns harmless from any damages and costs awarded against Flexcompute as a result of a third party claim arising from or related to Customer's: (i) negligence or willful misconduct; (ii) use of the Flexcompute Products or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Flexcompute Products in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (iv) modifications to the Flexcompute Products not made by Licensor; or (v) use of any version other than the most current version of the Flexcompute Products or Documentation delivered to Customer (vi) use of the Flexcompute Products by an Authorized Party or use of Content, including any allegation that the Content infringes upon or misappropriates any third party copyright, trademark, patent, privacy or other rights; (vii) Customer's failure to comply with any Export Control Laws, and (viii) violation of the terms found in Annex 1.
4. 5.4 Procedures. Each Party's indemnification obligation is subject to: (i) prompt notification of a claim in writing to the indemnifying Party; (ii) consent to allow the indemnifying Party to have sole control of the defense and any related settlement negotiations; and (iii) provision of information, authority and assistance as necessary for the defense and settlement of an indemnified claim. The indemnifying Party shall not consent to entry into judgment or enter into any settlement that admits liability of the indemnified Party or provides for injunctive or other non-monetary relief affecting the indemnified Party, without the prior consent of the indemnified Party, which consent shall not be unreasonably withheld.
5. 5.5 Exceptions. Flexcompute will have no obligations or liability for any IP Claim arising from or based upon: (i) any unauthorized use, misuse, reproduction or distribution of the Flexcompute Products, including use that is outside the permitted scope of this Agreement; (ii) any modification or alteration of the Flexcompute Products without the prior written approval of Flexcompute; (iii) use of the Flexcompute Products in combination with any other software, hardware, third-party data or other materials not provided by Flexcompute or expressly authorized in the applicable Documentation; (iv) use of a prior version of the Flexcompute Product, if use of a newer version of the Flexcompute Product would have avoided such claim; or (v) any Third-Party Materials.
6. 5.6 Remedies. If the Flexcompute Product becomes, or, in Flexcompute's opinion, is likely to become, the subject of an IP Claim, Flexcompute may, at its option and expense, either: (i) obtain the right for Customer to continue using the Flexcompute Product in accordance with this Agreement; (ii) replace or modify the Flexcompute Product so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably provided by Flexcompute, terminate all rights to use the Flexcompute Products (without need for a ruling by a court or arbitrator) and refund as applicable a pro rata portion of unused, prepaid fees.
7. 5.7 Sole And Exclusive Remedy. THIS SECTION 5 STATES FLEXCOMPUTE'S SOLE AND ENTIRE OBLIGATION AND LIABILITY, AND CUSTOMER'S AND ITS AFFILIATES' AND ALL AUTHORIZED USERS' SOLE AND EXCLUSIVE RIGHT AND REMEDY, FOR ANY CLAIM OF INFRINGEMENT OR ALLEGED VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.

6. Limitation of Liability

1. 6.1 Limitation of Liability. Except for: (i) each Party's indemnification obligations under this Agreement, (ii) death or bodily injury caused by a Party's negligence; (iii) Customer's payment obligations; (iv) Customer's violation of Flexcompute's intellectual property rights; and (v) Customer's breach of the use restrictions in Section 3.4, each Party's maximum, cumulative liability for any claims, losses, costs (including attorney's fees) and other damages arising under or related to this Agreement, regardless of the form of action, whether in contract, tort (including negligence or strict liability) or otherwise, will be limited to actual damages incurred, and will in no event exceed the lesser of ten thousand dollars ($10,000) or the fees paid or payable by Customer for the twelve (12) month period preceding the loss or damages giving rise to the claim and attributable to the specific products or services giving rise to such damages.
2. 6.2 Exclusion of Damages. IN NO EVENT WILL FLEXCOMPUTE, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY LOSS OF SAVINGS, PROFITS OR REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR REPUTATION, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. FLEXCOMPUTE PRODUCTS ARE NOT INTENDED FOR USE WITH OR FOR HIGH-RISK ACTIVITIES AND FLEXCOMPUTE WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE FLEXCOMPUTE PRODUCTS.
3. 6.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS CONTAINED IN THIS AGREEMENT WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY AGREED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT FLEXCOMPUTE MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF FLEXCOMPUTE'S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW.
4. 6.4 No Third-Party Beneficiaries. The warranties and other obligations of Flexcompute under this Agreement run only to, and for the sole benefit of Customer and not its Authorized Users. Except as otherwise mandated by applicable law, no person or entity will be considered a third-party beneficiary of this Agreement or otherwise entitled to receive or enforce any rights or remedies in relation to this Agreement.

7. Confidentiality

1. 7.1 Duties Regarding Confidential Information. At all times during and after the term of this Agreement, Recipient shall (a) keep Discloser's Confidential Information confidential and not disclose Discloser's Confidential Information to a third party without the Discloser's written consent or as expressly permitted in this Agreement, (b) not use the Confidential Information for purposes other than the performance of this Agreement, (c) not use the Confidential Information for its own commercial advantage, to inform or develop its own competitive business strategies, marketing plans, product development, or other internal uses outside its performance under the Agreement, nor share any derived insights with its departments not directly involved in Recipients performance under the Agreement or for any purpose unrelated to the Agreement, and (d) not reverse engineer, disassemble, decompile, create derivative works from, or otherwise analyze the physical construction of, any such items otherwise attempt to derive or develop any insights from the Confidential Information, except as strictly necessary to perform its obligations under the Agreement. Recipient may disclose Discloser's Confidential Information only to Recipient's Affiliates, employees, officers, directors, advisors or contractors (together, "Representatives") who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient's duty hereunder. Recipient shall protect the other Party's Confidential Information using the same degree of care used to protect its own confidential information, but in no event less than a reasonable degree of care. Recipient shall be responsible for any breach of Confidential Information by its Representatives. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice (if legally permissible) to enable Discloser to seek appropriate protection of the Confidential Information and discloses only that portion of the Confidential Information that the Recipient is legally compelled or is otherwise legally required to disclose. Any prior non-disclosure agreement executed among the parties is terminated in favor of these confidentiality terms.
2. 7.2 Unauthorized Disclosures. The parties agree that Recipient's threatened or actual unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond. Any such injunction shall be additional to other remedies available to Discloser at law or in equity.
3. 7.3 Each Party's confidentiality obligations hereunder will continue for a period of three (3) years following any termination of this Agreement, provided, however, that each Party's obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law.

8. Privacy

1. 8.1 Data Security. Flexcompute will use commercially reasonable, industry standard security measures in providing Flexcompute Cloud. Flexcompute has implemented commercially reasonable technical and procedural safeguards to protect and secure Customer's Confidential Information in accordance with the terms found at https://www.flexcompute.com/security/. Flexcompute Cloud offerings are hosted and delivered from a data center operated by a third-party provider, which is solely responsible for the underlying infrastructure and hosting of Flexcompute Cloud. Customer is solely responsible for any breach or loss resulting from: (i) Customer's failure to control user access; (ii) failure to secure Content which Customer transmits to and from Flexcompute Cloud; and (iii) failure to implement appropriate and timely backups, reasonable and appropriate security standards and measures, including encryption technology, to protect against unauthorized access.
2. 8.2 Data Privacy. Flexcompute's privacy notices and further information regarding Flexcompute's privacy measures may be found at https://www.flexcompute.com/privacy. Customer and Authorized Users are not permitted to provide Flexcompute with any Content that is subject to heightened security requirements by law, regulation or contract (examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Health Insurance and Portability and Accountability Act (HIPAA), Family Educational Rights and Privacy Act (FERPA), the Child's Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), and their international equivalents (such Customer Data collectively, "Excluded Data")). Flexcompute shall have no responsibility or liability for Excluded Data.

9. Term and Termination

1. 9.1 Term. This Agreement is effective upon the earlier of the effective date of the first Order Form referencing this Agreement or the date Customer is first provided with access to or use of the Flexcompute Products or Services, and shall remain in effect until expiration or termination of all rights to use any Flexcompute Products or Services. Unless otherwise indicated on an Order Form, Flexcompute Product or Service subscriptions shall begin upon the Delivery Date and automatically renew for successive terms equal to the initial subscription period, unless either Party provides prior written notice of non-renewal to the other Party at least ninety (90) days prior to the end of the then-current subscription period. Subscriptions may not be cancelled in whole or in part during any subscription period. Subscription fees are subject to increase based upon prevailing rates at the time of renewal.
2. 9.2 Termination for Breach or Insolvency. Either Party may terminate this Agreement or any applicable Order Form, license or subscription (without resort to court or other legal action) if the other Party fails to cure a material breach within thirty (30) days after written notice of such breach (or ten (10) days in the case of non-payment). Flexcompute may terminate this Agreement immediately upon written notice in the event Customer breaches Section 3.4 or if the breach is incapable of cure. Either Party may terminate this Agreement if the other Party terminates or suspends its business without a successor or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. 9.3 Effect of Termination. Customer's rights with respect to Flexcompute Products and Services will end upon termination of this Agreement or expiration of any applicable subscription, including the right to use any code or artifact generated by Flexcompute Products. Upon termination of this Agreement or the right to use any Flexcompute Products or Services, Customer shall immediately cease using the applicable Flexcompute Products and Services and uninstall, delete and destroy all copies of such Flexcompute Products. If Customer uses Flexcompute Products following the end of a purchased subscription period, Customer shall be charged at the prevailing rates for such use. In the event of termination, all amounts payable by Customer to Flexcompute under this Agreement are immediately due and payable. Termination of this Agreement or any licenses or subscriptions shall not prevent either Party from pursuing all available legal remedies, nor shall such termination relieve Customer's obligation to pay all fees that are owed. All provisions of this Agreement relating to Flexcompute's ownership of the Flexcompute Products, limitations of liability, disclaimers of warranties, confidentiality, waiver, audit and governing law and jurisdiction, will survive the termination of this Agreement.
4. 9.4 Suspension of Service. Flexcompute may, without limiting its other rights and remedies, suspend Customer's access to Flexcompute Products at any time if: (i) required by applicable law, including Export Control Laws, (ii) Customer or any Authorized User is in violation of the terms of this Agreement, (iii) Customer's use disrupts the integrity or operation of Flexcompute Cloud or interferes with the use by others; or (iv) Customer fails to make any payment when due. Flexcompute will use reasonable efforts to notify Customer prior to any suspension, unless prohibited by applicable law or court order. Customer will remain responsible for all fees incurred before and during any suspension.

10. General Provisions

1. 10.1 Verification and Audit. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Company may, at its own expense, on reasonable prior notice, on its own or through its designated agent or third-party accounting firm, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Licensor (or the applicable authorized reseller) with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with this Section. If such audit discloses that Customer is not in material compliance with the terms of this Agreement, then Customer shall be responsible for the reasonable costs of the audit, in addition to any other fees or damages to which Flexcompute may be entitled under this Agreement and applicable law.
2. 10.2 Third-Party Materials. Flexcompute Products may incorporate or otherwise access certain open source or other third-party software, data, services, or other materials for the hosting and delivery of the Flexcompute Products, which may be identified in the Documentation ("Third-Party Materials"). Flexcompute represents that if the Flexcompute Products are used in accordance with this Agreement, such use shall not violate any license terms for the Third-Party Materials. Flexcompute makes no other representation, warranty, or other commitment regarding the Third-Party Materials, and hereby disclaims any and all liability relating to Customer's use thereof.
3. 10.3 Connectivity to Third-Party Applications. Customer's use of Flexcompute Products to connect or interoperate with or access third-party applications or services may be governed by terms and conditions established by such third party. Third-party application programming interfaces and other third-party applications or services ("Third-Party Applications") are not managed by Flexcompute, and Flexcompute shall have no liability for connectivity if any Third-Party Applications are changed or discontinued by the respective third parties. Flexcompute does not support, license, control, endorse or otherwise make any representations or warranties regarding any Third-Party Applications.
4. 10.4 Evaluation. If Customer is provided Flexcompute Products for evaluation purposes ("Evaluation Products"), use of the Evaluation Products is only authorized in a non-production environment and for the period limited by the corresponding license key or credentials. If Customer is provided access to an evaluation of Flexcompute Cloud, Flexcompute will make the applicable Flexcompute Cloud offering available to Customer for its internal business operations on an evaluation basis free of charge until the earlier of: (a) the end of the evaluation period; (b) the start date of any purchased Flexcompute Cloud subscription ordered by Customer; or (c) termination by Flexcompute in its sole discretion. ANY CONTENT IN FLEXCOMPUTE CLOUD, AND ANY CONFIGURATION CHANGES MADE TO THE FLEXCOMPUTE CLOUD BY OR FOR CUSTOMER, DURING AN EVALUATION MAY BE PERMANENTLY LOST UNLESS: (A) CUSTOMER PURCHASES A SUBSCRIPTION FOR FLEXCOMPUTE CLOUD OR (B) CUSTOMER EXPORTS SUCH CONTENT BEFORE THE END OF THE EVALUATION PERIOD. Notwithstanding any other provision in this Agreement, the right to use the Evaluation Products is provided "AS IS" without indemnification, Support, service level credits, or warranty of any kind, expressed or implied. In no event will Flexcompute's maximum cumulative liability for Evaluation Products exceed one hundred U.S. dollars ($100).
5. 10.5 Early Release Products. Flexcompute may, in its discretion, periodically provide certain Customers with an opportunity to test early release features or functionality in connection with Flexcompute Products. Customer may decline to participate in the testing of such additional features or functionality at any time. Customer acknowledges that such features or functionality are not considered part of the Flexcompute Products under this Agreement, are not supported, are provided "as is" with no warranties of any kind and may be subject to additional terms. Flexcompute reserves the right at any time, in its sole discretion, to discontinue provision of, or to modify, any such features or functionality provided for testing purposes.
6. 10.6 Assignment. Customer will not assign or transfer this Agreement or its rights and obligations hereunder to any third party without the prior written consent of Flexcompute. For purposes of this Section, any change of control of Customer, whether by merger, sale of equity interests or otherwise, will constitute an assignment requiring the prior written consent of Flexcompute. Any attempt by Customer to assign this Agreement or its rights and obligations hereunder in violation of this Section will be null and void. Flexcompute is free to assign or transfer any or all of its rights or obligations under this Agreement at its discretion. All terms of this Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of Flexcompute and Customer. Any attempted assignment made without Flexcompute's prior express written consent shall be void and a material breach of this Agreement.
7. 10.7 Governing Law and 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 that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware or apply the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the County of Wilmington. The Parties hereby expressly and irrevocably submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. Flexcompute may be irreparably harmed by a breach of the terms of this Agreement and damages, alone, may not be an adequate remedy. Customer agrees, in addition to any other rights or remedies permitted under applicable law, Flexcompute will have the right to enforce this Agreement by injunctive or other equitable relief without the need to post a bond or to prove damages or irreparable harm. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL REGARDING DISPUTES RELATED TO THIS AGREEMENT.
8. 10.8 Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur during the Term of this Agreement and which are beyond the reasonable control of the Parties, such as strikes, blockade, war, acts of civil or military authority, terrorism, riots, natural disasters, refusal of license or other acts by any government or other governmental agencies (including the passage of laws, regulations or sanctions which impact the delivery of Flexcompute Products or Services), pandemics, failure or diminishment of power, telecommunications or data networks or services, denial-of service attacks or materials shortage in so far as such an event prevents or delays the affected Party from fulfilling its obligations and such Party is not able to prevent or remove the force majeure at reasonable cost (“Force Majeure Event”).
9. 10.9 Internet Performance. The flow of data via the internet depends in large part on the performance of internet services provided or controlled by third parties, which Flexcompute does not and cannot control. The actions or inactions of such third parties can impair or disrupt the internet. Flexcompute will use commercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur and disclaims any liability resulting from or relating to such events.
10. 10.10 Trade Restrictions; Export Regulation. Flexcompute Products and Services are provided subject to the laws and regulations of the United States and other countries on trade restrictions that may prohibit or restrict access by certain persons or from certain countries or territories, including but not limited to sanctions, embargoes and export restraints. The Flexcompute Products may be subject to Export Control Laws. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Flexcompute Products accessible from, any country, jurisdiction or person to which export, re-export, or release is prohibited by applicable Export Control Laws. Customer will comply with all applicable Export Control Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Flexcompute Products available outside the United States.
11. 10.11 U.S. Government End Users. The Software and Documentation provided in Flexcompute Products are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable, and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Licensed Software - Restricted Rights" and DFARS 227.7202, "Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation", as applicable, and any successor regulations. Any data or other information provided by or on behalf of Flexcompute is not form, fit or function data and is limited rights data and/or restricted computer software as described in the FARS, 48 CFR § 52.227-14 and that the terms of FAR 52.227-14 Rights in Data-General or FAR 52.227-17 Rights in Data – Special Works shall, accordingly, not apply thereto. Any use, modification, reproduction, release, performing, displaying or disclosing of the Flexcompute Products and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
12. 10.12 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Flexcompute to the address set forth on the first page of this Agreement, and if to Customer to such address as it has provided to Flexcompute (and regarding either party, or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email to the email address provided by either Party to the other, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
13. 10.13 Relationship between the Parties. The Parties are independent contractors. Nothing in this Agreement will be construed to create an agency, joint venture, partnership, fiduciary relationship, joint venture or similar relationship between the Parties.
14. 10.14 No Waiver. No term of this Agreement will be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the Party issuing the same. Neither this Agreement nor any Order Form shall be dependent on Customer issuing a purchase order. Customer acknowledges that any purchase order is for its administrative convenience only and that Flexcompute has the right to issue an invoice and collect payment without a corresponding purchase order. Any additional or conflicting terms or conditions in any purchase order shall have no legal force or effect.
15. 10.15 Limitation. Subject to applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than two (2) years after the cause of action arose.
16. 10.16 Entire Agreement; Severability; Language. This Agreement, any attachments hereto or documents referenced in the Agreement, along with all Order Forms, are the complete statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications pertaining to the subject.
17. 10.17 Construction. For purposes of this Agreement: (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. A Party's role in drafting this Agreement shall not be a basis for construing this Agreement in any manner against such Party. Any Flexcompute Order Form and the schedules and exhibits attached thereto are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
18. 10.18 Publicity. During the term of this Agreement, Customer agrees to support Flexcompute's marketing efforts in the following areas: (i) Customer's name and logo may be used on Flexcompute's website and in Flexcompute's marketing materials (subject to Flexcompute's compliance with any written trademark use guidelines provided by Customer to Flexcompute in advance), (ii) press release announcing Customer's selection of Flexcompute and/or the Service, and (iii) announcement of Customer's use of Flexcompute (in a method of Customer's choosing; blog, press release, email, other channels). If Customer plans to submit or publish any research relative to Customer's outcome of using Flexcompute Products and/or Service, Customer agrees to inform Flexcompute prior to such submission or publication.

1. Third Party Software License Terms

1. 1.1 Flexcompute may license certain software for use within the Flexcompute Products (the "Licensed Software"). Flexcompute hereby grants to Customer during the Term a nonexclusive, non-sublicensable, terminable license to use the Licensed Software for a period set forth in the applicable ordering document. Customer may not transfer or further sublicense the Licensed Software.
2. 1.2 Customer agrees that use of the Licensed Software is limited to the Customer's internal business purposes, and Customer shall have no rights to distribute the Licensed Software to, or use it on behalf of, others or to make the Licensed Software available to any third party, whether as part of any hosted or SaaS solution or time-sharing or service bureau arrangement or otherwise.
3. 1.3 Customer acknowledges that Flexcompute's licensors' Intellectual Property Rights are contained in portions of the Licensed Software and that it shall use reasonable care in maintaining their confidentiality, not use the Licensed Software except as permitted under the Agreement, and not disclose the Licensed Software to any third party without a written agreement with Company.
4. 1.4 Customer agrees that title to, and ownership of, the Licensed Software shall not be transferred by virtue of the Agreement. Customer is obligated to retain and not remove or obscure any and all copyright, trademark, and proprietary notices and legends contained on the Licensed Software and on all copies thereof.
5. 1.5 Customer is prohibited from de-compiling or reverse engineering the Licensed Software and/or creating any derivative works, compilations, or collective works thereof.
6. 1.6 Customer is obligated to comply with applicable export restrictions and will not export or re-export the Licensed Software without the appropriate United States or foreign government licenses.
7. 1.7 Where Customer is a U.S. Government Customer, the Licensed Software is a 'commercial item' as that term is defined at 48. C.F.R. 2.101 (OCT 1995), and more specifically is 'commercial computer software' and 'commercial computer software documentation', as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252-227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III) as applicable, the Licensed Software is provided to Customer (a) only as a commercial item and (b) any use, duplication, or disclosure thereof is subject to restrictions as set forth in the License Agreement.
8. 1.8 Where Flexcompute provides Licensed Software for trial use by Customer under an evaluation agreement Customer shall be subject to all of the provisions set forth in this Agreement and its shall be Customer's obligation to assure that such Licensed Software are either destroyed, disabled or returned to Flexcompute upon expiration of the evaluation period.