Platform Subscription & Services Agreement

 

This Frenos Platform Subscription and Services Agreement (“Agreement”) is entered into by and between Frenos, Inc., a Delaware corporation (“Frenos”), and the entity that has executed an Order for the Frenos products and services as described below ("Customer"). This Agreement includes any exhibits, attachments and references thereto, and each Order accepted by Frenos, all of which are incorporated by this reference. Capitalized terms shall have the meaning outlined in Section 1 ("Definitions") and others are defined contextually in this Agreement. Frenos and Customer may also be referred to individually as "Party" or collectively as the "Parties" throughout the Agreement.

THIS AGREEMENT GOVERNS USE OF AND ACCESS TO THE FRENOS PLATFORM UNLESS AN APPLICABLE LICENSE AGREEMENT HAS BEEN EXECUTED BY BOTH CUSTOMER AND FRENOS WHICH SUPERSEDES THIS EULA. UNLESS SUCH AN APPLICABLE LICENSE AGREEMENT HAS BEEN EXECUTED, BY DOWNLOADING, INSTALLING, OPERATING, ACCESSING OR USING THE FRENOS PLATFORM, THE INDIVIDUAL AND THE LEGAL ENTITY ON WHOSE BEHALF THE SOLUTION IS ACCESSED (“CUSTOMER”) AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE INDIVIDUAL EXECUTING THIS AGREEMENT REPRESENTS THAT HE/SHE HAS THE AUTHROITY TO BIND THE CUSTOMER TO THIS AGREEMENT.

1. DEFINITIONS

 

Affiliate” means an entity that controls, is controlled by, or is under common control of a Party, where “control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of the subject entity.

 

"AI Capabilities" means those elements of the Platform powered by large language models or other generative artificial intelligence using regression analysis to determine the predictability of various vulnerabilities to Customer Data.

 

“Customer Data” means any network device configurations, asset inventory data, vulnerability data, and other related inputs and materials submitted by Customer or a User to the Platform.

 

"Customer Equipment" means Customer managed equipment, third-party software, and ancillary services needed to access or otherwise use the Platform, including as outlined in the Documentation.

 

"Digital Twin" means a digital model of a physical device, product, or system intended to emulate the behavior and characteristics of the underlying system it replicates.

 

"Documentation” means the Frenos-provided standard usage documentation and related information applicable to the Platform, whether in electronic, paper, or equivalent form, as updated by Frenos from time to time.

 

"Harmful Code" means code, files, scripts, agents, malware, or programs intended to harm Customer Data, including but not limited to viruses, worms, time bombs, and Trojan horses.

 

“Order” means a written or electronic order form, executed by the Parties, identifying the Platform, Usage Metrics, Professional Services, SOW, Fees and other information relevant to a specific transaction between Customer and Frenos.

 

"Platform" means the Frenos security analytics platform, Software, AI Capabilities, and all associated Updates, provided by Frenos via an Order that provides the functionality described in the Documentation.

 

"Platform Output" means the results of applying the AI Capabilities to the Customer Data via the Digital Twin or otherwise generated by the Platform. Such outputs may include whether the techniques utilized by potential hackers may be successful, business impacts, recommendations to mitigate the potential threats, and the level of effort needed to complete such mitigation.

 

"Platform Support" means Frenos' customer support for the Platform as described in Exhibit A attached hereto.

 

“Professional Services” means the implementation, technical, consulting, training, and related services provided by or through Frenos as described in the relevant Order or SOW (as applicable).

 

"Reseller" means a third party authorized by Frenos to promote and resell the Platform.

 

"Software" means the proprietary Frenos-provided software and Frenos-provided APIs (if any), including all Updates, deployed on Customer Equipment or accessed in connection with Customer's use of the Platform.

 

"Statement of Work" or "SOW" means a document executed by the Parties describing Professional Services purchased by Customer pursuant to an Order.

 

“Subscription Term” means the entire period during which Customer is entitled to use the Platform, including the initial term and any applicable renewal terms, as set forth on the applicable Order.

 

“Updates” means all updates and enhancements that Frenos makes generally available at no additional charge to its customers of the Platform and licensed hereunder.

 

“Usage Metrics” means the applicable Platform module, quantities, charges, and related metrics used to determine the scope of Customer’s access and use of the Platform and associated Fees, as set out in an Order.

 

"Users" means the individual or agent authorized by Customer to use the Platform. Users include employees, consultants, agents, and other third parties accessing the Platform on Customer’s behalf according to this Agreement.

 

2. PROVISION OF THE PLATFORM

 

2.1       Access License to the Platform. Subject to Customer’s compliance with this Agreement and timely payment of applicable Fees (described below), Frenos hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted hereunder), non-sublicensable right to install or access the Software (in object code format) in connection with its use of the Platform for Customer’s internal business use at the Usage Metrics purchased by Customer during the Subscription Term. Customer is responsible for obtaining and maintaining any Customer Equipment needed to connect, access, or otherwise use the Platform. Customer may make a reasonable number of copies of the Software solely as necessary for disaster recovery and related backup purposes. Customer agrees that its license and use of the Platform is not contingent on any future functionality or features, or dependent on any oral or written public comments made by Frenos regarding future functionality or features.

 

2.2        AI Capabilities. Certain portions of the Platform may include or be powered by AI Capabilities which may return Platform Output. Customer acknowledges that Platform Output provided to Customer may be similar or identical to Platform Output independently provided by Frenos to other Customers. Given the nature of the AI Capabilities, Frenos does not represent nor warrant that (a) any Platform Output does not incorporate or reflect third-party content or materials, or (b) any Platform Output will not infringe third party intellectual property rights. Platform Output is generated through machine learning processes and is not tested, verified, endorsed, or guaranteed to be accurate, complete, or current by Frenos. Customer should independently review and verify all Platform Output as to the accuracy and appropriateness for any Customer use cases or applications.      

 

2.3        Updates to the Platform. Frenos may issue new releases for the Platform during the Subscription Term which may include Updates, enhancements, or other modifications which will be included in the Fees set out in the Order.

 

2.4        Platform Support. During the Subscription Term, Frenos will provide Platform Support as described in Exhibit A attached hereto.

 

2.5        Professional Services. Frenos will perform Professional Services as described in an Order or Statement of Work, which may identify additional terms or milestones for such Professional Services. Customer will give Frenos timely access to Customer's facilities, materials, or related resources, reasonably needed for providing the Professional Services. Subject to any limits in an Order or Statement of Work, Customer will reimburse Frenos' reasonable travel and lodging expenses incurred in providing Professional Services.

 

2.6        Trial Access. Customer may install the Software and use the Platform on a free trial basis (“Trial Access”) only as outlined in an Order. If Customer receives Trial Access, Customer’s access and use is solely permitted for Customer’s internal evaluation during the period designated by Frenos under an Order (or if not designated in an Order, thirty (30) days) (the “Trial Period”). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FRENOS PROVIDES THE TRIAL ACCESS “AS IS” WITH NO WARRANTY OF ANY KIND AND FRENOS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  

 

3         USE OF THE PLATFORM

 

3.1        Users. Customer will be responsible for (a) Users’ compliance with this Agreement and any Order(s) issued hereunder; (b) the accuracy and quality of Customer Data, the means by which Customer acquired Customer Data, and obtaining appropriate usage rights with respect to Customer Data; (c) maintaining the confidentiality of usernames, passwords, and other account information (as applicable); (d) all activities that occur as a result of Users’ access to the Platform; and (e) ensuring Users’ use the Platform only in accordance with (i) Documentation, and (ii) all applicable laws and government regulations. Customer will notify Frenos immediately of any unauthorized use of, or access to, the Platform.

 

3.2        Restrictions. Customer shall not: (a) make the Platform available to any third party other than Customer or Users; (b) sell, resell, license, sublicense, distribute, rent, or lease the Platform, or include the Platform in a service bureau or outsourcing offering; (c) permit direct or indirect access to or use the Platform in a way that circumvents the Usage Metrics, or use the Platform except as expressly permitted under this Agreement, an Order, or the Documentation; (d) provide to Frenos any personally identifiable information via the Platform; (e) access the Platform in order to build a competitive product or service or to benchmark with a non-Frenos product or service; (f) reverse engineer, copy, decompile, disassemble, prepare derivative works of, or modify any Software included as part of the Platform (except to the extent expressly permitted by applicable law); (g) utilize the Platform for improper, fraudulent, or other non-legitimate business purposes; or (h) damage, interfere, disable, or impair the Platform in any way.

 

3.3        Affiliates. Customer’s Affiliate(s) may purchase a subscription to the Platform under this Agreement if such Affiliate directly enters into an Order with Frenos, and by doing so such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Each Affiliate’s Orders, and the corresponding Usage Metrics, are separate and distinct from Customer’s and other Affiliates’ Orders unless otherwise set forth on the Order.

 

4. FEES AND PAYMENT

4.1        Fees. Customer will pay Frenos all fees as set forth in the applicable Order or SOW (“Fees”). Except as set forth herein, all payment obligations are non-cancelable and Fees paid are non-refundable.

4.2        Payment Terms. Except as otherwise set forth in the applicable Order, all Fees will be billed annually in advance. All invoices for Fees are due and payable within thirty (30) days and in United States Dollars ("USD") unless otherwise set forth in the applicable Order, without deduction or setoff. Interest accrues from the due date of undisputed Fees at the higher of 1.5% per month or the highest rate allowed by law. Customer is responsible for providing complete, current and accurate billing and contact information to Frenos. If Customer fails to pay any undisputed portion of a past due invoice within ten (10) business days after receiving notice that its account is overdue, Frenos may, without limiting its other rights and remedies, suspend the Platform until such amounts are paid in full.

4.3        Use of Purchase Orders. No additional or inconsistent terms of any pre-printed purchase order, or other similar form provided by Customer, will modify or supplement this Agreement, regardless of any failure of Frenos to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.

4.4        Taxes. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its Orders (identified or not), whether domestic or foreign, other than Frenos’ income tax. Fees and expenses are exclusive of taxes.

4.5        Purchases Through a Reseller. If Customer purchases the Platform through a Reseller, the pricing and payment terms are between Customer and Reseller (“Reseller Terms”). Customer acknowledges: (a) all payments for the Platform procured via a Reseller will be made directly to the Reseller and in accordance with the Reseller Terms, and (b) if a Reseller notifies Frenos of its right to terminate or suspend any Platform, Frenos may terminate or suspend such Platform. Frenos will not be liable to Customer or any third party for any liabilities, claims, or expenses arising from or relating to any applicable Reseller Terms.

4.6        Record Keeping. Upon earlier of (a) written request by Frenos or (b) within the thirty (30) day period before completing the Subscription Term, and annually thereafter, Customer shall provide written verification to Frenos indicating its actual usage of the Platform, as reasonably requested by Frenos ("Usage Report") to verify such usage. To the extent the Usage Report shows Customer has exceeded its Usage Metrics as outlined in the Order, Frenos will invoice Customer at its current rates unless otherwise stated in the Order. During the Subscription Term for the Platform and for one (1) year after its expiration or termination, Customer will maintain accurate records of Customer’s use of the Platform sufficient to show compliance with the terms of this Agreement and the applicable Order(s). Frenos will have the right to audit Customer’s use of the Platform to confirm compliance with the terms of this Agreement and the applicable Order(s). That audit is subject to reasonable notice by Frenos and will not unreasonably interfere with Customer’s business activities. Frenos may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. Customer will reasonably cooperate with Frenos and any third party auditor and will address any non-compliance identified by the audit by promptly paying additional Fees. Customer will promptly reimburse Frenos for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the fees payable by Customer for the period audited, or if Customer have materially failed to maintain accurate records of Platform use.

 

5. PROPRIETARY RIGHTS AND LICENSES

5.1        Ownership; Reservation of Rights. As between Frenos and Customer, all rights, title, and interest in and to all intellectual property rights in the Platform and Frenos’ Confidential Information are and will remain owned exclusively by Frenos and its licensors. Ownership in all Updates, derivative works, modifications, new functionalities, enhancements, and customization related to the Platform created by or on behalf of Frenos will immediately vest in Frenos upon creation. Unless otherwise specified in the applicable SOW, all deliverables provided in the performance of Professional Services are owned by Frenos and will be made available as part of the Platform provided under this Agreement. Other than as expressly set forth in this Agreement, no license or other rights in or to the Platform or other Frenos intellectual property rights are granted to Customer, and all such rights are expressly reserved to Frenos and its licensors.

5.2        Customer Data and Platform Output.   As between Customer and Frenos, Customer Data, Platform Output, and Customer Confidential Information are and will remain owned exclusively by Customer or the User, as applicable. Customer hereby grants Frenos and its Affiliates a worldwide, limited-term license to utilize Customer Data as necessary for Frenos to analyze, host, copy, transmit, display, access, and otherwise use Customer Data to provide the Frenos Platform in accordance with this Agreement and each Order executed hereunder.

5.3        Platform Data. Customer agrees that Frenos may collect, process, and use the Customer Data solely as necessary to train, enhance, and improve its machine learning and artificial intelligence models and provide support, provided that all Customer Data will be anonymized before it is utilized by Frenos hereunder so as not to disclose the identity of Customer, any personally identifiable information of its Users, or any Customer Confidential Information.

5.4        Feedback. To the extent that Customer or its Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Platform or Documentation, Customer hereby grants Frenos an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such feedback without any restrictions or attribution.

6.       CONFIDENTIALITY

6.1        Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Frenos includes the Platform including any discussions or information related to any beta or pre-production elements of the Platform; and Confidential Information of each Party includes the terms of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that the Receiving Party can demonstrate (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

6.2        Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) except as otherwise expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those herein. Neither Party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel, and accountants without the other Party’s prior written consent, on condition that a Party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate’s, legal counsel’s, and accountants’ compliance with this “Confidentiality” Section.

6.3        Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent compelled by law to do so, on condition that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7. REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS

7.1        General Warranty. Each Party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.

7.2        Frenos Limited Warranties. Frenos warrants that (a) the Platform will perform materially in accordance with the applicable Documentation; (b) Frenos will not materially decrease the overall functionality of the Platform during the current Subscription Term; (c) Frenos will use industry standard measures to prevent Frenos from introducing Harmful Code through the Platform; and (d) Frenos will perform the Professional Services in a diligent and professional manner. Customer’s exclusive remedy and Frenos’ entire liability for a breach of the above warranties will be the correction of the deficient service that caused the breach of warranty, provision of comparable functionality, or, if Frenos cannot accomplish the foregoing in a commercially reasonable manner, as determined in its reasonable discretion, Frenos may terminate the deficient service and refund Customer any prepaid Fees related to the Platform prorated for the remainder of the Subscription Term following notice of the breach of warranty.

7.3        Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS LICENSORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FRENOS DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE PLATFORM ENTIRELY PREVENTS THIRD PARTIES FROM CAUSING HARM OR GAINING UNAUTHORIZED ACCESS TO CUSTOMER DATA, OR WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.

8. INDEMNIFICATION

8.1        Indemnification by Frenos. Frenos will defend any claim, demand, suit, or proceeding made or brought against Customer by a third party to the extent such claim alleges that Customer’s use of the Platform (as authorized in this Agreement, and as provided by Frenos to Customer) infringes any valid and enforceable third-party United States patent, copyright, or validly registered trademark, or misappropriates a third-party trade secret (a “Claim”) and will indemnify Customer for any damages finally awarded against Customer (or amounts agreed in a monetary settlement) in connection with such Claim. If the use of the Platform by Customer has become, or in Frenos’ opinion is likely to become, the subject of any Claim of infringement, Frenos may at its option and expense (i) procure for Customer the right to continue using and receiving the Platform as set forth hereunder; (ii) replace or modify the Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order and provide a pro-rata refund of any prepaid subscription Fees corresponding to the terminated portion of the applicable Subscription Term. Frenos will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (1) any modification of the Platform made by anyone other than Frenos, (2) any use of the Platform in combination with products or services not provided by Frenos where the Platform would not by itself be infringing, (3) access to the Platform under an Order for which there is no charge; (4) Customer’s use of the Platform not in compliance with this Agreement, (clauses (1) through (4), are referred herein as “Excluded Claims”). This indemnity states Frenos’ entire liability, and Customer’s exclusive remedy, for any third-party Claims as described herein.

8.2        Indemnification by Customer. Customer will defend any Claim made or brought against Frenos by a third party arising out of the Excluded Claims, and Customer will indemnify Frenos for any damages finally awarded against Frenos, (or amounts agreed in a monetary settlement) concerning such Claim. This indemnity states Customer’s entire liability, and Frenos’ exclusive remedy, for any third-party claims as described herein.

8.3        Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a) prompt written notice, (b) sole control over the defense and any settlement negotiations, and (c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of the indemnifiable claim, on condition that the indemnified Party’s prior written consent will be required with regard to any settlement that imposes any obligation or liability on the indemnified Party, such consent not to be unreasonable withheld, conditioned, or delayed. The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.

9. LIMITATION OF LIABILITY

9.1        EXCLUSION OF DAMAGES. OTHER THAN FOR BREACHES OF CONFIDENTIALITY, NEITHER PARTY (OR ITS AFFILIATES) WILL BE LIABLE FOR ANY LOSS OF PROFITS, REVENUES, OR GOODWILL, OR BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, COSTS OF SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER, CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9.2        LIMITATION OF LIABILITY. A PARTY’S (AND ITS RESPECTIVE AFFILIATES’) AGGREGATE CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM WILL NOT EXCEED THE APPLICABLE SUBSCRIPTION FEES PAID OR PAYABLE TO FRENOS FOR THE PLATFORM GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT EXPAND THIS LIMIT. THE LIABILITY LIMITATIONS UNDER THIS SECTION WILL NOT APPLY TO (A) CUSTOMER’S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT; (B) EITHER PARTY'S BREACH OF CONFIDENTIALITY; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION); (E) A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR (F) EITHER PARTY’S NEGLIGENCE ON-SITE DURING THE PERFORMANCE OF PROFESSIONAL SERVICES THAT RESULT IN DEATH, PERSONAL INJURY, OR DAMAGE TO TANGIBLE PROPERTY.

10. TERM AND TERMINATION

10.1      Term of Agreement. This Agreement will commence on the Effective Date and continue until terminated as permitted herein. If there are no active Orders, this Agreement may be terminated by either Party upon ninety (90) days’ prior written notice.

10.2     Subscription Term. The initial Subscription Term and any applicable renewal Subscription Term will commence and expire in accordance with the start date and end date set forth in the Order. Unless otherwise specified in an Order, a Subscription Term shall be one year and will automatically renew annually on the same terms, unless either Party gives the other Party written notice (email is sufficient) of non-renewal at least ten (10) days before the end of the relevant Subscription Term. Any new subscription subsequently added to Customer’s existing subscription will be coterminous with the current Subscription Term set forth in the applicable Order unless otherwise stated.

10.3      Suspension. In the event of Customer’s or a User’s breach of this Agreement, including without limitation for non-payment, Frenos may, in its reasonable discretion, suspend Customer’s or a User’s access to or use of the Platform. Notwithstanding the foregoing, Frenos will use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Customer or a User via email before taking the foregoing actions.

10.4     Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of the breach from the non-breaching Party, or with immediate effect where such material breach cannot be cured. This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.

10.5      Effect of Termination. Upon the termination of this Agreement for any reason: (a) all outstanding Orders and access to the Platform will automatically terminate; (b) Customer and its Users will immediately cease access and use of the Platform and deinstall the Software on Customer Equipment; (c) all outstanding payment obligations of Customer will become due and payable immediately.   Except where an exclusive remedy is provided herein, exercising a remedy under this Agreement, including termination, does not limit other remedies a Party may have.

10.6 Surviving Provisions. The Sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representation, Warranties, Exclusive Remedies, Disclaimers”, “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination of this Agreement.

11. GENERAL PROVISIONS

11.1      Publicity and Reference. Frenos may publicly announce Customer as a Frenos customer and may reproduce Customer’s company name, logo, trademark, trade name, service mark, or other commercial or product designations in connection therewith unless and until Customer objects thereto. With Customer’s prior written consent, Frenos may use Customer’s company as a reference and publicize Customer in its marketing and advertising material.

11.2      Export Control. Each Party will comply with all applicable Export Control and Sanctions Laws and Regulations in connection with providing and using the Platform. Without limiting the foregoing, (a) each Party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to U.S. jurisdiction (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) Customer will not, and will ensure that Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause any such violation to occur; and (c) Customer will not use or cause any person to use the Platform to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.

11.3      Anti-Corruption.   Neither Party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other Party in connection with this Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.

11.4      U.S. Government Rights. If Customer, or any User, is a branch, agency, or instrumentality of the United States Government, the following provision applies: The Platform and Documentation comprise “commercial computer software” and “commercial computer software documentation” as such terms are used in federal law.

11.5      Governing Law & Dispute Resolution. This Agreement will be governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to this Agreement. The Parties will be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and the Parties agree and consent to the exclusive jurisdiction and venue of such courts.

11.6      Notices.   Any required notice will be given in writing by customary means with receipt confirmed at the address of each Party set forth on the Order, or to such other address as either Party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit via certified mail, or upon confirmation of receipt if sent by email.

11.7      Force Majeure.   Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, pandemics or epidemics (or similar regional health crisis), actions or decrees of governmental bodies, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes beyond the reasonable control of the affected Party (each a “Force Majeure Event”). The Party suffering a Force Majeure Event will use reasonable efforts to mitigate against the effects of such Force Majeure Event.

11.8      Assignment. Neither Party may assign this Agreement, in whole or part, without the prior written consent of the other Party, which will not be unreasonably withheld, and any other attempt to transfer a Party’s rights or obligations under this Agreement will be void; however, either Party may assign this Agreement without consent (a) to an Affiliate, or (b) in the event of a merger, corporate reorganization, or to a purchaser of a Party’s business entity in the event of a sale of all or substantially all of its business or assets relating to this Agreement, or other change of control, on condition that the purchaser is not a competitor of the other Party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Any other attempt to transfer a Party’s rights or obligations under this Agreement is void.

11.9      Attorneys’ Fees and Costs. The prevailing Party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.

11.10    Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

11.11    Subcontractors. Frenos may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Frenos remains responsible for the performance of each such Subcontractor.

11.12    Entire Agreement; Order of Precedence. This Agreement (together with any SOWs, Orders, and linked terms) contains the entire agreement of the Parties concerning the subject matter of this Agreement and supersedes all prior communications, representations, agreements, and understandings, either oral or written, between the Parties with respect to its subject matter. This Agreement may only be amended or its obligations waived by a writing signed by both Parties. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the Order, (2) a SOW, (3) this Agreement, and (4) any links provided herein.

11.13    Modifications. Frenos may modify the terms of this Agreement (including any terms or policies referenced herein as applicable) from time to time by posting the updated and/or modified Agreement on Frenos’ website. Customer can review the most current version of the Agreement at any time by visiting the website. If Customer (or any User) accesses or uses the Platform after the effective date, such use will constitute Customer’s acceptance of any revised terms and conditions.

11.14    Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the Parties as evidenced by this Agreement, and the remainder of this Agreement will continue in full force. This Agreement is in the English language only, which language is controlling in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding on the Parties. Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term, or a waiver of any other term of this Agreement. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that Frenos will have no obligations or liability whatsoever to any third parties with which Customer does business.

 

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Exhibit A

Platform Support

 

This Platform Support Exhibit is issued under and forms part of the Frenos Platform and Subscription Services Agreement ("Agreement"). Any capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. Frenos offers Platform Support for the Platform as follows:

 

1. Definitions.

 

"Critical Error" means an Error which renders the Platform inoperative.

 

"Error" means an error in the Platform that significantly degrades the normal use of the Platform.

 

"Error Correction" means the use of commercially reasonable efforts to correct Errors.

 

"Non-Critical Error" means an Error in which an important function or capability is experiencing a reproducible problem but does not render the Platform inoperative.

 

2. Maintenance. Frenos will make available to Customer all generally available Updates, enhancements, and bug fixes to the Platform.

 

3. Support Hours. Frenos is available to receive support inquiries during business hours: Monday to Friday, 9:00 AM - 5:00 PM (Eastern Standard Time).

 

4. Error Submission and Response Severity Levels. Customer may report Errors in the Platform by contacting Frenos at the applicable email specified in the table below. Customer will provide information and cooperation to Frenos as reasonably required for Frenos to provide the Platform Support. Frenos' will assign a severity level ("Severity Level") to each Error and use reasonable commercial efforts to respond and resolve the Error in accordance with the table below. All reported Errors will be tracked until resolved and Customer will be kept informed of the status and progress of such Errors.

 

Severity Level	Description	Email Address	Target Response Time	Target Resolution Time
Severity 1	Critical Error; no workaround is available	support@frenos.io	within 48 hours	within 72 hours
Severity 2	Non-Critical Error	support@frenos.io	within 48 hours	within 7 business days

 

5. Exclusions. Frenos will have no obligation to provide Platform Support to the extent an Error arises from (a) misuse or unauthorized modifications to the Platform, (b) Trial Access or other free or evaluation use, or (c) Professional Services deliverables (as applicable).