EULA

This End User License Agreement, including each Order Form, Documentation, and any other referenced documents (collectively, the “EULA“), is a binding agreement between the applicable Appfire Entity (“Appfire”) and the entity identified on the Order Form (“Customer”) and shall govern Customer’s acquisition and use of the Products.

The “Effective Date” of this EULA is the earlier of (a) Customer’s initial access to or use of the Products; or (b) the effective date of the first Order referencing this EULA.

BY ACCESSING, DOWNLOADING, INSTALLING, COPYING, CLICKING ″ACCEPT″, OR USING ANY PRODUCT, CUSTOMER AGREES TO THIS EULA. IF CUSTOMER ACCEPTS THESE TERMS ON BEHALF OF AN ENTITY, CUSTOMER REPRESENT THAT CUSTOMER HAS THE AUTHORITY TO BIND THAT ENTITY. IF CUSTOMER DISAGREE:

• DO NOT ACCESS, DOWNLOAD, INSTALL, COPY, CLICK ″ACCEPT″, OR USE THE PRODUCTS; AND
• PROMPTLY DESTROY ALL COPIES OF THE PRODUCTS, INCLUDING DOCUMENTATION.

THE PRODUCTS ARE OFFERED ONLY TO PERSONS NOT CONSUMERS UNDER ANY APPLICABLE LAW. IF CUSTOMER IS A CONSUMER, CUSTOMER IS NOT AUTHORIZED TO ENTER INTO THIS EULA.

Appfire sells Products through multiple affiliated entities (each an “Appfire Entity”).  For most Products, Appfire Technologies, LLC will be the Licensor.  The specific Appfire Entity acting as Licensor for any Product will be identified in the applicable Documentation.

If Customer licenses Products from multiple Appfire Entities, the EULA for each is a stand-alone agreement between Customer and the respective Appfire Entity.

1. Definitions

Certain capitalized terms used in this EULA have the meanings set forth in this section, or, if not defined herein, as otherwise defined in context.

• “Accessible Code” means source code that Appfire makes available to Customer.
• “Affiliate(s)” means with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests.
• “Authorized Reseller” means a third party that has been authorized by Appfire to license or distribute the Products.
• “Authorized User” means a person designated by the Customer to access and use the Products in accordance with the Scope of Use, provided that the required Fees have been paid. Authorized Users also include any Secondary Users that the Customer permits to use the Products, subject to Section 3. Employees of Customer’s Affiliates can also be named as Authorized Users, provided Customer retains all responsibility for their use in accordance with this EULA.
• "Subscription Products” collectively mean Cloud Services and Data Center Subscriptions.
• "Cloud Service(s)” means any software functionality made available by Appfire in a hosted or cloud-based environment as specified in an Order Form.
• “Customer Data” means all content and information uploaded, posted, submitted, published, or transmitted by Customer in connection with use of the Products.     
• “Data Center Product” means Software made available by Appfire for deployment on servers operated or controlled by Customer. From time to time, such Products may be designated as “Data Center”, “Self-Hosted”, “Private Server”, or similar on the Order Form.
• "Data Center Subscription” means the rights granted to Customer to access and operate Software in object code only, during the Subscription Term and as limited by the Scope of Use on a remote server in a data center as further defined in Section 4.
• Documentation” means Appfire’s online published product guides and end user documentation available online or through the Products, as may be updated by Appfire from time “Feedback” means comments, questions, ideas, suggestions, or other feedback relating to the Products that Customer submits to Appfire.
• “Fees” mean all fees, including Support, outlined in an Order applicable to the Products.  Fees also include additional fees if the Customer exceeds the allotted capacity or other limits specified in the Order or Documentation.
  • “Partner Marketplace” means an online marketplace operated by a third party that provides downloadable, accessible, and/or cloud-based app Products.
• “Media” means all images, icons, text files, PDFs, or static non-code files within the Products.
• “No-Charge Products” refers to products provided by Appfire at no charge, including trials, Beta Versions, free versions, and products offered with a full discount. Products are designated as No-Charge Products in the Order Form, Documentation, or Product user interface.
• “Order Form” or “Order” means Appfire’s applicable online order page(s), invoice, or other ordering document provided by Appfire, an Authorized Reseller, or Partner Marketplace for the purchase of Appfire Products.
• “Party” or “Parties” means the applicable Appfire Entity, Customer, or both, as applicable.
• "Products” means Software, Subscription Products, Data Center Products, Documentation, and Support, collectively.
• “Product Update(s)” means any bug fixes, patches, major or minor releases, updates, upgrades, changes, enhancements, modifications, or add-on components for a Product that may be made generally available by Appfire as part of Support.
• “Scope of Use” means Customer’s authorized scope of use or authorized scope of access to the Products, which may include: (i) the number of permitted installations of the Software, the number of Authorized Users, the number of authorized servers, the number of unique data set platforms, or other defined Product utilization limitations, (ii) storage or capacity (for Subscription Products), (iii) numbers of licenses, copies or instances (for Software), (iv) Term, or (v) other restrictions or billable unit calculations or limitations.
• “Server” refers to the Software deployed as a server option during the Subscription Term.
• “Software” means the commercially available software made available for download or access, whether licensed for a fee or available without charge, as specified in an Order Form, including Accessible Code, Media, printed materials, printed, online, or electronic documentation, and Third-Party Software.
• “Subscription Term” means the period during which Customer is permitted to use the Products, as specified in the Order Form.
• “Support” means: (a) Product Updates, (b) required Partner Marketplace compatibility updates, and (c) the online support portal for technical issues related to the use of the applicable Products located here.  Support is sold together as an inseparable bundle with the Subscription Products.  Server products include the first year of Support; thereafter, Customer may renew Support at the then-current Support rates.  In no event may the Subscription Products be used on a standalone basis without Support.

2. Account Registration

Customer may need to register for:

• an Appfire account, or
• Partner Marketplace account(s)

to place Orders or access the Products. Customer’s registration information must be accurate, current, and complete, and Customer must update it to ensure that notices, statements, and other information are sent to Customer. Customer is responsible for all activity through Customer’s accounts.

For Products not requiring a Partner Marketplace account, the Customer remains solely responsible for any activity related to the Products through the Customer’s device.

3. Orders; Delivery; Authorized Users

(a) Order Form.  The Order Form will specify the Scope of Use and Term. It may also include any Product or Support renewal terms or purchases Customer makes to increase or upgrade Customer’s Scope of Use. Customer may increase the number of Authorized Users by submitting a new Order Form or, directly through the Product, if available.

(b) Delivery.  Any applicable license keys for the Products set forth in the Order Form will be delivered to Customer’s account before or promptly following our receipt of payment of applicable Fees. Customer is responsible for accessing Customer’s account to determine that we have received payment and that Customer’s Order Form has been processed. All deliveries under this EULA are electronic, Customer is responsible for Product installation, and Customer acknowledges that Appfire has no further delivery obligation concerning the Product after delivery of the license keys.

(c) Authorized Users.  Only Authorized Users may access and use the Products. Some Products allow for different types of Authorized Users, which may impact pricing and functionality. Customer is responsible for all fees incurred by Authorized Users and ensuring their compliance with this EULA.

(d) Secondary Users.  Subject to this EULA, Customer may allow Customer’s customers’ end users (“Secondary Users”) limited rights to use the Products, but only to view and interact with Customer’s offerings enabled by the Products (“Enabled Offering”). Secondary Users cannot use the Products for any other purpose, nor can they be given administrator or configuration access. Customer may charge for Customer’s Enabled Offering, but cannot allocate part of the fee for Product use. Secondary Users are considered Authorized Users, and Customer is responsible for their compliance with this EULA, including Section 5 (License Restrictions). Customer is solely responsible for Customer’s Enabled Offerings. Notwithstanding anything to the contrary in this EULA, Appfire has no direct or indirect warranty, indemnity, or other liability or obligations of any kind to Secondary User(s).

(e) Administrators.  Customer may designate Authorized Users as administrators to manage Customer’s Subscription Products (“Administrators”). Administrators appointed by Customer may take over management of accounts previously registered using an email address belonging to Customer's domain, as described in the Documentation. Customer is responsible for Administrator actions and any fees incurred through Administrator activities.

4. Grant of License; Right to Access

(a) Subject to the terms and conditions of this EULA, the applicable Order Form, and the Documentation, Appfire grants Customer the following rights with respect to the Products.

• Server License. For a Server license, Appfire grants a perpetual (subject to termination in accordance with Section 13), worldwide, non-exclusive, non-transferable (except as set forth in Section 23), non-sublicensable license to (a) download, install, use and operate the Software in object code only within the Scope of Use, (b) make and install copies of the Software to support the Scope of Use, and (c) make one (1) copy of the Software for data protection, archiving and backup purposes.
• Subscription Products. For Subscriptions Products, Appfire will provide Customer with access to the Subscription Products, during the Subscription Term, as specified in the Order Form.   The Data Center Products  must be operated on a remote server in a data center that is either: (a) owned or leased by Customer; or (b) hosted by a third party on Customer’s behalf, provided that (i) only Customer and Customer’s Authorized Users can access or use the Data Center Products  , (ii) Customer has no rights, contractual or otherwise, to take possession of the Data Center Products  , and (iii) Customer is responsible for any act or omission by the third party hosting the Software that results in a breach of this EULA or infringement of our intellectual property rights, whether or not Customer authorized the host to undertake such act or omission.
• No-Charge Products.  Customer may access No-Charge Products during the Subscription Term (or if no Subscription Term is indicated, thirty (30) days) and Customer’s use of No-Charge Products is subject to any additional terms specified by us. Except as otherwise set forth in this Section 4, Customer’s obligations under this EULA, including Section 5 (Restrictions), fully apply to No-Charge Products. After the Subscription Term has expired Customer must either (i) purchase and abide by the applicable license for the generally available Product, or (ii) remove and delete all copies of, and cease access to, any No-Charge Products. Appfire may terminate Customer’s right to use No-Charge Products at any time and for any reason in our sole discretion without notice and liability. Customer understands that any pre-release and beta versions of our Products (“Beta Versions”) are still under development, may be inoperable or incomplete, and are likely to contain more errors and bugs than generally available Products. Appfire makes no promises that any Beta Version will ever be made generally available. In some circumstances, we may charge a Fee to allow Customer to access Beta Versions, but the Beta Versions will remain subject to this paragraph.
• Evaluation of Products. If Appfire or a Partner Marketplace offers a trial period, Customer is granted a one-time,  non-exclusive, non-transferable (except as set forth in Section 23), limited use license (an “Evaluation License”) to download, install, use and operate the Software on a single server or access Subscription Products, for the duration set forth on the Partner Marketplace, but not to exceed a thirty (30) day period (“Evaluation Period”), and by a limited number of temporary users as specified by us in our sole discretion. Upon expiration of the Evaluation Period, the Evaluation License will terminate and Customer must uninstall, remove, and delete all copies of the Software, or cease any access to or use of the Subscription Products unless Customer has purchased a commercial license. Customer is prohibited from acquiring and using multiple Evaluation Licenses for the same Product simultaneously or serially without express prior written consent. Attempts to circumvent this prohibition, such as but not limited to, using multiple email addresses within the same organization to continue to obtain Evaluation Licenses, are expressly prohibited and constitute a violation of this EULA. All Evaluation Licenses must (a) be acquired by the entity that holds the license to the server; (b) be installed on a physical or virtual server owned or leased by Customer; (c) not be used for any commercial or business purposes other than to evaluate the Product; and (d) not be used with more than three (3) Evaluation Licenses per server. Notwithstanding the foregoing, some of our Products may offer an extended Evaluation Period or run more than three (3) Evaluation Licenses on a server. If an extended Evaluation Period or, more Evaluation Licenses per server, is available for a Product, Customer must contact Appfire’s Customer Success Team at solutions@appfire.com to request such an extension or increase, which may be granted at Appfire’s sole discretion. In the event Customer’s use of a Product exceeds the limitations on the use of the Evaluation License set forth in this paragraph without express approval, Customer will be in breach of this EULA. In such event, without limiting any other remedy available to us, Appfire reserves the right to bill Customer for, and Customer agree to pay, any accrued Fees for Customer’s use of the Product beyond the scope of the Evaluation License.

To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities concerning No-Charge Products, Beta Versions, and Evaluation Licenses, including any Support, warranty, and indemnity obligations.

(b) Product Updates.  While Appfire is not obligated to provide Product Updates, it may do so periodically. Appfire reserves the right to change, modify, or discontinue any Products or their functions or features, temporarily or permanently. If a Product is discontinued, Appfire will make commercially reasonable efforts to provide at least ninety (90) days' notice via its website or customer portal. All Product Updates are subject to this EULA unless otherwise specified in the Product-Specific Terms. Customer agrees to promptly install any available Product Updates.

(c) This EULA applies regardless of whether Customer purchases a license to the Products directly from Appfire, through a Partner Marketplace, or via an Authorized Reseller. If purchased through an Authorized Reseller, Customer’s Scope of Use will be outlined in the Order Form provided by the Authorized Reseller, who is responsible for its accuracy. Authorized Resellers are not authorized to make promises or commitments on behalf of Appfire, and we are only bound by the terms in this EULA.

5. Customer Responsibilities

1. Authorized Use. Customer will ensure that only Authorized Users access or use the Products, and only in accordance with this EULA, Documentation, Acceptable Use Policy, and applicable laws and regulations.

(b) Restrictions.  Except as permitted by the Documentation, Customer agrees not to, and will not allow any third party to:

(i) decompile, reverse engineer, disassemble, modify, adapt, create derivative works from, or otherwise attempt to derive any part or whole of the Products, including through use of Documentation, except as permitted by law with prior written notice to Appfire; (ii) upload, store, or process any protected health information (PHI), payment card data (PCI), or other regulated personal data unless expressly permitted in writing by Appfire; (iii) sell, sublicense, distribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Products; (iv) provide any data or information not owned by Customer that Customer obtains through the Products to a person who is not an Authorized User; (v) modify or create any derivative work of the Products; (vi) publish, promote, broadcast, circulate or refer publicly to the Appfire name, trade name, trademark, service mark or logo without Appfire written consent; (vii) commit any act that could damage Appfire or its  suppliers’ reputation; (viii) offer the Products for rental, timesharing, subscription, hosting or outsourcing basis or otherwise purport to distribute the Products without entering into a separate agreement with Appfire; (ix) access or use Products for competitive analysis or similar purposes; or (x) copy or embed the Software’ Accessible Code into other software. The Software may include license protection mechanisms. Customer must not attempt to alter or bypass them. Without limiting any other right of Appfire, any violation by Customer or its employees, contractors, or agents of this section will immediately terminate this EULA without notice.

6.  Third-Party Products

(a) Use.  Customer and Customer’s Authorized Users may use third-party products or services, including implementation, customization, or training, in connection with the Products. These may come with additional obligations beyond this EULA. Customer’s use of third-party products or services is governed by a separate agreement between Customer and the third-party providers. If Customer enable or use third-party products or services with the Products, Customer acknowledge that the third-party providers may access, modify, or use Customer’s Data as required for the interoperation of their products and services with the Products. This could involve transmitting, transferring, modifying, or deleting Customer’s Data, or storing Customer’s Data on third-party systems. It is Customer’s responsibility to carefully review any third-party agreements. Appfire is not responsible for third-party access to or use of Customer’s Data, or their security or privacy practices. Customer is solely responsible for deciding to allow third-party access to Customer Data. APPFIRE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THIRD-PARTY PRODUCTS OR SERVICES, INCLUDING SUPPORT, AVAILABILITY, SECURITY, AND ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS.

7.  Support

Appfire will provide Support as set forth in the Order Form and Documentation. Customer may submit requests for technical support through the Product’s online support portal as specified in the Documentation.

8. Fees and Taxes

Customer must pay all Fees within the period specified on the invoice, per Appfire’s pricing terms and purchase instructions. Late payment may lead to immediate termination of the licenses and rights granted under this EULA. Fees exclude taxes, duties, and governmental charges (“Taxes”) related to the sale, delivery, or use of the Products.  Unless Customer provides a valid exemption certificate for each jurisdiction, Customer is responsible for all Taxes, excluding those on Appfire’s net income.  If Appfire is required to pay or collect Taxes on Customer’s behalf, Customer agrees to promptly reimburse Appfire.

9. Reservation of Rights and Ownership

The Products are provided to Customer on a limited license basis, with no ownership rights transferred, regardless of terms such as “purchase,” or “sale” in this EULA. Except as stated in this EULA and an Order Form, Customer have no right to use the Products, which are protected by copyright and other intellectual property laws. We and our licensors retain all rights, title, and interest in the Products (including Media), Documentation, and any copies. Any Feedback Customer submit may be freely used by us without any obligation, including royalties. Feedback is not considered Confidential Information, and this EULA does not limit our right to use or develop products or services independently.

Customer retains ownership of all Customer Data. However, Customer grants Appfire a non-exclusive, worldwide, royalty-free license to (a) collect, use, copy, store, transmit, modify, and create derivative works of Customer’s Data as needed to provide the Product, and (b) distribute and display Customer’s Data as directed by Customer when sharing or interacting with others through the Product.

10. Information Security and Data Protection

1. Security and Internal Controls. In accordance with Appfire’s Security Annex, available at Appfire’s Trust Center and incorporated herein by reference, Appfire shall (i) maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for the protection of the security and integrity of the Products, and of the Customer Data contained within the Products, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards, (ii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and (iii) perform periodic testing by independent third-party audit organizations, which include with Service Organization Controls (SOC 2) audits and ISO 27001 certification or surveillance audits performed annually. In no event during the Subscription Term shall Appfire materially diminish the protections provided by the controls set forth in Appfire’s then-current Security Annex.

Processing and Protection of Personal Data. While providing the Products, Appfire may access Customer Data that contain personal data in the meaning of the applicable data protection laws, including the Regulation (EU) 2016/679 (“GDPR”). While processing such information in relation to providing the Products, Appfire processes personal data as a data processor, i.e., on Customer’s behalf and based on Customer’s instructions deriving from the Appfire Data Processing Addendum, available at Appfire’s Trust Center unless otherwise executed by the Parties(“DPA”). To provide the Products, however, Appfire may also process some categories of personal data as a data controller, i.e., for Appfire’s purposes, including legal obligation - in such cases, the processing is governed by Appfire’s Privacy Policy.  The terms of the DPA and Appfire’s Privacy Policy are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA.

Customer order data is encrypted and stored on secure servers or services with physical and logical safeguards, and app data is stored redundantly to prevent data loss. However, Customer is responsible for backing up and reconstructing Customer’s Data.

By providing Customer’s Data, Customer agree to comply with applicable law and represent and warrant that (i) Customer have the necessary rights and permissions to provide Customer’s Data to grant Appfire the rights in this EULA, and (ii) Customer’s Data’s transfer and use by Appfire does not violate any laws or third-party rights. Customer is solely responsible for Customer’s Data and any associated consequences. Customer agrees not to store personally identifiable information or protected information in non-designated fields.

11. Confidentiality

Each party agrees that any code, inventions, know-how, business, technical, or financial information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any intellectual property, the underlying technology, and any performance information relating to or regarding the Products, including but not limited to all information regarding the characteristics, features, selection, and arrangement of data or performance of Beta Versions, shall be Confidential Information of ours without any requirement for marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in strict confidence and not use or disclose any Confidential Information of the Disclosing Party. This nondisclosure obligation shall not apply to any information that the Receiving Party can document: (i) was rightfully in Receiving Party’s possession or known to Receiving Party on a non-confidential basis prior to receipt of the Disclosing Party’s Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by Receiving Party or its employees who did not have access to or make use of any of Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 11.  The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law, or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Receiving Party acknowledges that disclosure of Confidential Information of the Disclosing Party would cause substantial and irreparable harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief, without the necessity of posting of bond, in addition to whatever other remedies Disclosing Party might have at law.

12. Notification of Breach

If Customer breaches any obligation under this EULA, Customer must immediately notify us in writing at legal@appfire.com detailing the breach. If the breach involves unauthorized distribution or use of Products or Third-Party Software outside of the Scope of Use, Appfire or the third-party owner may, in addition to any other Fees due, charge Customer a fee based on the number of unauthorized distributions or uses multiplied by the applicable list prices.

13. Term, Renewals and Termination

1. The Order Form specifies the Subscription Term for each Product. The Subscription Term or Support Term will commence on the Order Form date (unless otherwise stated) and end on the expiration date indicated in Customer’s account.
2. Unless otherwise specified in the Order Form the Subscription Term will automatically renew for successive one-year periods unless either party provides 30 days’ written notice of non-renewal before the end of the then-current Subscription Term, or Appfire discontinues the Subscription Products. Notwithstanding anything to the contrary in the foregoing, if Customer has disabled the “auto renewal” option in Customer’s account within the Product user interface or Partner Marketplace, renewals require a mutual written agreement. All renewals depend on the continued availability of the Product and will be billed at the then-current rates.
3. Either Party may terminate this Agreement or any Order Form prior to its expiration if the other Party materially breaches this Agreement, the Order Form, as applicable, and fails to cure said breach within thirty (30) days after receipt of written notice thereof, specifying the breach in reasonable detail. In the event Appfire terminates this Agreement, any Order Form, due to Customer’s uncured breach, all unpaid fees are due and payable immediately. In the event Customer terminates this Agreement, any Order Form, due to Appfire’s uncured breach, Appfire shall refund to Customer fees paid for any unused portion of the Term.

(d) Upon Term expiration, Customer’s license to the Software will terminate, Customer’s rights to use or access the Subscription Products will cease, and any rights to Support will expire at the end of the applicable Term.  Upon expiration or termination, Customer is required to remove all Software from Customer’s computer systems, destroy any copies of any Product in Customer’s possession, and cease access to and use of any Cloud Product. Customer must pay any outstanding amounts due for Products for which Customer have agreed to purchase a license under an Order Form, even if Customer terminate Customer’s license to that Product under Section 13(a). All amounts paid to us are non-refundable and non-creditable. Upon termination of this EULA for any reason, Customer will not have access to Customer’s Data (and we may delete all of Customer’s Data unless legally prohibited) after expiration or termination of this EULA, so Customer should make sure to export Customer’s Data using the functionality of the Products during the applicable Subscription Term.

(e) Sections 9 through 29 and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration shall survive any termination or expiration of this EULA.

14. License Certifications

Once every twelve (12) months, or at any time if we reasonably suspect (a) unauthorized distribution or access of the Products, (b) independent use of Third-Party Software without express permission or (c) any breach of this EULA, we may request a report of Customer’s Product use and compliance with the Scope of Use during the prior twelve (12) month period.  Customer agrees to provide this report within thirty days.  If the report shows that Customer’s use of the Product exceeded the Scope of Use (the “Excess Use”), Customer must, within thirty (30) days, purchase (a) licenses for the Excess Use and future compliance and (b) pay Fees invoiced for such Excess Use.  Fees will be at our then-current rates, except that a second Excess Use within five (5) years or failure to provide the report may result in license termination.  Notwithstanding the foregoing, “Excess Use” shall not apply to any Evaluation License granted hereunder, or Customer’s failure to comply with the license restrictions set forth in Section 5, and we reserve all rights and remedies at law or equity for any such breach.

15. Publicity Rights

Customer agrees that Appfire may identify it as a customer of Appfire on Appfire’s websites and in other marketing materials. Appfire may display Customer’s trademarks, service marks, and/or logos in Appfire marketing materials or on the Products in order to identify Customer as a customer. The foregoing shall be deemed a worldwide, non-exclusive, revocable license to use Customer’s name, trademarks, service marks, and logos for this purpose during the Term of this Agreement. Customer also agrees to be referenced in press releases and case studies prepared by Appfire. Such license and consent will terminate at the end of the Term of this Agreement. Customer may revoke this right at any time by submitting a request through the following form: https://wkf.ms/4dKGmCf to be excluded from future promotional materials.

16. Product Service Analyses

Appfire may (i) compile statistical and other information related to the performance, operation, and use of the Products, and (ii) use, and share data from the Products environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Product Analyses”). Product Analysis will not incorporate any information in a form that could serve to identify Customer or an individual.

16. Generative AI

Products may include features, applications, and other functionalities utilizing generative artificial intelligence and/or machine learning data models (“AI Features”). When Customer use AI Features, Customer will provide or make available input data, which may include text, prompts, or any other content for processing by the AI Features (“Input”) and receive responses or output generated by the AI Features based on the Input (“Output”). Customer acknowledge Output may not always be accurate, complete, or appropriate and that other customers and/or Users may use AI Features in a manner that may generate identical or similar Output. Appfire makes no representations or warranties with regard to Output, including ownership thereof. Customer assumes all responsibility for the use of the AI Features and any Output, including reviewing and validating the Output for accuracy and appropriateness. AI Features must be used in accordance with Appfire’s Acceptable Use Policy and Appfire may block, filter, or refuse to process Input or Output that violates the terms of this Agreement or applicable law. Specifically, Customer agrees not to use AI features for: (i) generating content that is illegal, harmful, threatening, abusive, harassing, defamatory, or discriminatory, (ii) creating misleading, deceptive, or fraudulent content, including deepfakes or impersonation, (iii) processing protected health information (PHI), payment card data (PCI), or other regulated personal data unless expressly permitted in writing by Appfire, (iv) generating content that infringes third-party intellectual property rights, (v)  automated decision-making that significantly affects individuals without appropriate human oversight or (vi) any purpose that violates applicable laws or regulations. Appfire will not use Customer Data to train, retrain, or improve its AI models or those of third parties. Appfire may use aggregated, anonymized usage information for performance monitoring, improvement, and development purposes, but such data will not contain any information in a form that could serve to identify Customer or an individual.

17. Export Compliance

Customer cannot use, export, or re-export any Product except as permitted by United States law and the laws of the jurisdiction where it was obtained. Customer is responsible for obtaining required U.S. export licenses and complying with applicable regulations. The Products may not be used in or exported to (a) Russia, Belarus, or any U.S. embargoed country, or (b) any person or entity on the U.S. government restricted lists. By ordering or using any Product, Customer represent and warrant that Customer is not in any restricted location or on any restricted list. Customer also agree not to use the Product for prohibited purposes, including those related to nuclear, chemical, or biological warfare, missile technology, military applications, or other uses restricted under U.S. Export Administration Regulations or related U.S.  laws.

18. Exclusion of Warranties

To the fullest permitted by law, the Appfire Entities and their third-party suppliers provide the Products “AS IS,” WITH ALL FAULTS AND DEFECTS, AND WITHOUT ANY WARRANTY. APPFIRE, ON ITS BEHALF AND ON BEHALF OF ITS SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, APPFIRE PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE INTENDED RESULTS, BE COMPATIBLE WITH ANY OTHER SOFTWARE, HARDWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET PERFORMANCE OR RELIABILITY STANDARDS, OR BE SECURE, TIMELY, UNINTERRUPTED, BE ERROR-FREE, OR THAT THE AI OUTPUT DOES NOT VIOLATE THIRD-PARTY RIGHTS OR APPLICABLE LAW. APPFIRE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND OTHER PROBLEMS BEYOND ITS REASONABLE CONTROL OF APPFIRE, SUCH AS THOSE INHERENT IN INTERNET AND ELECTRONIC COMMUNICATIONS. ANY STATUTORILY REQUIRED WARRANTIES, IF APPLICABLE, ARE LIMITED TO THE SHORTEST PERIOD ALLOWED BY LAW.

19. Indemnification

19.1. By Appfire. Appfire will indemnify, defend, and hold harmless Customer, its directors, officers, employees, agents, and Affiliates (each, a “Customer Indemnitee”) from and against any and all third-party liabilities, claims, damages and losses, including all reasonable attorney’s fees, costs, and expenses (collectively, “Claims”), arising out of any Claims that the Product infringes, misappropriates, or violates any third party’s intellectual property rights (“Infringement Claim”), except for any such infringement, misappropriation, or violation that arises out of any act or omission by Customer, its Users, or any agent, or Affiliate of Customer in violation of the terms and conditions of this Agreement or any Order Form, In the event of any such Infringement Claim, Appfire may, at its option: (i) obtain the right to permit Customer to continue using the Products, (ii) modify or replace the relevant portion(s) of the Products with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing portion of the Products and refund to Customer any prepaid, unused fees for such infringing portion of the Products hereunder. Notwithstanding the foregoing, Appfire will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Products made by a party other than Appfire, (2) Customer Data or the combination of the Products with products or services not provided by Appfire, or (3) Customer’s use of the Products other than in accordance with this Agreement. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 19.1 ARE APPFIRE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

19.2. By Customer. Customer will indemnify, defend, and hold harmless Appfire and its directors, officers, employees, agents, and Affiliates (each, a “Appfire Indemnitee”) from and against any and all third-party Claims arising out of (i) Customer’s, including its Users, employees, agents and contractors, use of the Products in violation of; or (ii) Customer Data.

19.3. Indemnification Procedure. A party (whether a Customer Indemnitee, or a Appfire Indemnitee, each an “Indemnitee”) that believes it is entitled to be indemnified pursuant to this Agreement will (i) promptly notify the applicable Party (the “Indemnitor”) in writing of any Claims for which such Party owes an indemnification obligation hereunder, and (ii) cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take sole control of the defense and investigation of such Claim and will employ counsel to handle and defend the same, at the Indemnitor’s cost and expense. The Indemnitee’s failure to perform any obligations under this Section 19.3 will not relieve the Indemnitor of its obligations under this Section 19 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. In no event will Indemnitor settle any Claim without the consent of the Indemnitee, which Indemnitee will not unreasonably withhold, condition, or delay, unless such settlement includes an unconditional release of Indemnitee from all liability and does not contain any admission of liability on behalf of Indemnitee.

20. Limitation of Liability

Except for the indemnification obligations of Section 19, neither Party will be liable to any person, with respect to any loss, damage, cost, expense, or other claim, for any consequential (such as loss of income; loss of business profits or contracts; business interruption; loss of the use of money or anticipated savings; loss of information; loss of opportunity, goodwill or reputation; loss of, damage to or corruption of data), indirect, special, punitive or other damages in relation to the Products including (a) any use or reliance on a Product by the person (including the form and content of errors in and/or omissions from any information contained in the Products); (b) any delay, interruption or other failure in the provision of a Product; or (c) any Product Update. All the foregoing limitations shall apply even if a Party has been informed of the possibility of such damages. In no event will a Party’s aggregate liability under any claims arising out of or related to this EULA or Customer’s use of the Products exceeds the Fees, if any, paid by Customer for the current Term under the applicable Order Form, except where not permitted by applicable law, in which case each Party’s liability shall be limited to the maximum extent permitted by such applicable law. Monetary damages as limited by this Section provide Customer’s sole remedy for any breach of this EULA by Appfire, and Customer’s sole alternative remedy should any specific remedy hereunder be found to fail of its essential purpose.

21. Governing Law, Venue, and Notices

The Parties agree that this EULA will be governed by and construed and interpreted in accordance with the following:

If Customer is entering into this EULA from the UK or a European Union member country other than Germany, then this EULA is governed by the laws of Poland, and the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of, and venue in, the courts in Warsaw, Poland. If Customer is entering into this EULA from Germany, then this EULA is governed by the laws of Germany and subject to the exclusive jurisdiction of the courts in Munich, Germany. Otherwise, this EULA shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules and any civil action or legal proceeding arising out of or relating to this EULA shall be brought in the courts of record of the Commonwealth of Massachusetts in Suffolk County or the United States District Court, Eastern District of Massachusetts.

The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to this EULA.

Any notice under this EULA must be given in writing. We may provide notice to Customer via email or through Customer’s account. Our notices to Customer will be deemed given upon the first business day after we send it. Customer may provide notice to us by post to Appfire Technologies, LLC, Attn:  General Counsel, 1500 District Avenue, Burlington, MA 01803, with a copy to legal@appfire.com. Customer’s notices to us will be deemed given upon our receipt.

22. Severability

If any term of this EULA is found unenforceable or unlawful, it will be modified only as needed to make it enforceable, and the remaining terms will remain in full force and effect.

23. No Waiver

A waiver of any right under this EULA is only effective if in writing and signed by the authorized representative of the waiving Party. A waiver of any past or present right arising from any breach or failure to perform will not be deemed to be a waiver of any future rights.

24. Assignment

Customer will not assign or transfer this EULA or any rights and obligations under it without our prior written consent, except, in the case of a merger, acquisition, or asset sale, or transfer to any Affiliate or corporate reorganization, provided (i) we are notified in writing within ninety (90) days, and (ii) the assignee agrees to be bound by this EULA, including the Scope of Use. Any assignment or transfer in violation of this Section will be void. We may assign our rights and obligations under this EULA without Customer’s consent. This EULA is binding on and benefits the parties and their permitted successors and assigns.

25. U.S. Government Users

If the Products are acquired with U.S. Federal Government funds, or by any U.S. Government agency, department, or entity, they and all related documentation, including technical data or manuals, are considered a "commercial item," as defined in 48 C.F.R. 2.101 (Oct. 1995).  This includes "commercial computer software" and "commercial computer software documentation," as specified in  48 C.F.R. 12.212 (Sept. 1995). In accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), the U.S. Government acquires only those rights in the Products and documentation explicitly set forth in this EULA. Any additional rights must be expressly granted by a mutually agreed written addendum.

26. Revisions to EULA

As our industry evolves, we may update this EULA or Product-Specific Terms, including related policies and documents. If a revision materially reduces Customer’s rights, we’ll use reasonable efforts to notify Customer, such as by emailing the billing or technical contact listed on Customer’s Order Form, posting on our website, blog,  relevant Partner Marketplace, or within the Documentation. Revised terms become effective upon the next renewal of Customer’s Term or Subscription Term. If Customer object to any revisions, Customer’s sole remedy is to discontinue using the Products at the end of the Term, including canceling any auto-renewals. For No-Charge Products, accepting the updated EULA is required to continue using them; Customer may need to click through to accept. If Customer do not accept the revised EULA, Customer’s right to use No-Charge Products ends. For clarity, any Order Form is governed by the EULA version in effect at the time of the order. Customer may not modify this EULA without our written agreement, which we may deny at our discretion.

27. Entire Agreement

This EULA is the entire agreement between the Parties regarding its subject matter, superseding all prior agreements, proposals, negotiations, representations, or communications. Both Parties confirm that they have not been induced to enter into this EULA by any representations or promises not expressly stated herein. In the event of a conflict between this EULA and any open source licenses included with the Products, the terms of the open source licenses will govern solely for the open source components, and this EULA will apply to the remainder of the Products.

28. Rules of Interpretation

In interpreting this EULA, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (b) a reference to a Party includes its representatives, successors or permitted assignees; (c) any phrase introduced by the terms “including,” “include,” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (d) a reference to writing or written includes faxes, e-mails, communications via websites and comparable means of communication.