This Master Subscription Agreement (this “Agreement”) is made between Supaflow LLC, a Delaware limited liability company (“Supaflow”), and the party that subscribes to the Supaflow Products (as defined below) (“Customer”)
Effective Date: The “Effective Date” of this Agreement is the earlier of (a) the date when the Customer first accesses any Supaflow Product through online provisioning, registration, or an order process, or (b) the date the first Order Form referencing this Agreement becomes effective.
Modifications to this Agreement: From time to time, Supaflow may modify this Agreement. Unless otherwise specified by Supaflow, changes become effective for the Customer upon renewal of the current subscription term as outlined in an Order Form or on the effective date of a new Order Form after the updated version of this Agreement takes effect. Supaflow will make reasonable efforts to notify the Customer of these changes through communications via the Customer’s Account, email, or other methods. The Customer may need to click to accept or otherwise agree to the modified Agreement before renewing a subscription or on the effective date of a new Order Form. Continued use of any Supaflow Product or the Professional Services after the updated version of this Agreement takes effect will constitute the Customer’s acceptance of the revised terms.
TERMS AND CONDITIONS
1. DEFINITIONS
The following terms, when used in this Agreement, will have the following meanings:
“Acceptable Use Policy” means the Acceptable Use Policy for Supaflow’s Products and Professional Services located at https://www.supa-flow.io/legal/acceptable-use-policy.
“Affiliate” means an entity that controls, is controlled by, or is under common control with a party to this Agreement at any time during the Term, as long as such control exists. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the entity. However, regarding Customer, such an entity must not be a current or potential competitor to Supaflow nor engaged in developing or offering products or technologies that are substantially similar to any Supaflow Product.
“Authorized Marketplace Provider” means a third-party marketplace through which Supaflow offers the Supaflow Products or Professional Services and that is expressly authorized by Supaflow, including Snowflake Marketplace, Google Cloud Platform Marketplace, Microsoft Azure Marketplace, and Amazon Web Services Marketplace.
"AI Features" means any features or functionality within or made available through the Supaflow Products that use, incorporate, or are powered by artificial intelligence or machine learning models, including features that enable Customers or Users to configure, manage, or interact with the Supaflow Products (such as the Replication Pipelines, Transformation, Activation Pipelines, and Orchestration) through AI-assisted or natural language interfaces.
“Customer Data” means any data uploaded by Customer or its Users to any Supaflow Product for processing by that Supaflow Product.
“Customer Metadata” means metadata specific to Customer or Customer’s use of a Supaflow Product that is required to configure, manage, or orchestrate the Supaflow Product for Customer, including pipeline configurations, lineage metadata, user and workspace settings, system orchestration data, and encrypted connection metadata. For clarity, Customer Metadata does not include the contents of Customer Data.
“Deliverables” means work products provided to Customer under an Order Form for Professional Services and as may be further detailed in an SOW.
“Documentation” means Supaflow’s usage documentation for the applicable Supaflow Product made available on Supaflow’s website.
“Supaflow Materials” means any proprietary tools, libraries, ideas, methodologies, techniques, concepts, training materials, know-how, and expertise used, or retained, by Supaflow or its personnel in providing the Deliverables.
“Supaflow Partner” means an authorized reseller, distributor, or other partner of Supaflow for the Supaflow Products and/or Professional Services.
“Supaflow Product” means (a) a SaaS-based data integration product (“SaaS Product”), (b) a downloadable data integration software component or product installed on premises or in the Customer’s private cloud environment (“On-Prem Software”), which may include the DI Agent used in a Hybrid Deployment, or (c) any combination or hybrid of these, in each case provided by Supaflow.
“Order Form” means an order document, online order, or Term Sheet entered into between the Customer and Supaflow, or an online order process completed by the Customer and confirmed by Supaflow, in each case specifying the Supaflow Product(s) and/or Professional Services to be provided under this Agreement.
"Output" means any content, response, suggestion, recommendation, code, configuration, or other material generated by or returned from an AI Feature in response to a prompt, query, or other input from Customer or its Users.
“Professional Services” refers to consulting, developmental, training, educational, or advisory services offered by Supaflow as specified in the relevant Order Form and/or SOW.
“Required Information” refers to Customer materials, resources, and log-in credentials provided by Customer to Supaflow in connection with the Professional Services.
“Source and Destination” refers to, with respect to On-Prem Software, the authorized types and quantities of computer hardware, storage platforms, and computer frameworks that the Customer may use with such On-Prem Software, as specified in the applicable Order Form.
“SOW” means a statement of work entered into between the Customer and Supaflow that outlines the terms and conditions under which Supaflow will provide Professional Services to the Customer.
“Support Policy” means Supaflow's support policy, available at https://www.supa-flow.io/legal/support-policy.
“System Data” refers to data, information, or outputs generated by Supaflow through the use of a Supaflow Product, including logs, statistics, or reports related to the performance, availability, usage, integrity, or security of the Supaflow Product (such as a user’s path through the product, login frequency, query logs, etc.). For clarity, System Data does not include Customer Data and does not affect Supaflow's confidentiality obligations regarding Customer Data under this Agreement.
“Term Sheet” means a written document entered into or accepted by the parties that specifies the Supaflow Product(s) or Professional Services purchased by the Customer through a Supaflow Partner, along with any related terms and conditions for their authorized use.
“Third Party Platform” means any product, add-on, or platform not provided by Supaflow that the Customer uses with the Supaflow Product.
“Trial Product” means any Supaflow Product offered for free, as a trial, evaluation, proof of concept, or similar basis.
“User” means an employee, contractor (to the extent providing services to Customer), or end user of Customer that Customer has provisioned to use a Supaflow Product through the Customer’s account.
2. SUPAFLOW PRODUCTS, SERVICES, AND SUPPORT; PROPRIETARY RIGHTS
2.1 Supaflow Products and Professional Services. Supaflow will grant the Customer the right to use and access the Supaflow Products and Professional Services listed on each Order Form, in accordance with this Agreement and the terms of the technical support and service-level agreement referenced in the Support Policy. Supaflow will comply with all applicable laws and regulations (“Applicable Laws”) related to the delivery of the Supaflow Products and Professional Services to its Customers.
2.2 On-Prem Software License. For any Order Form that includes On-Prem Software, subject to this Agreement's terms, Supaflow grants the Customer a limited, non-exclusive, non-transferable (except as part of a permitted assignment under Section 11.6 Assignment), non-sublicensable, royalty-free, worldwide license during the subscription term of such Order Form to install, integrate, and use the On-Prem Software on the Source and Destination for its own internal business purposes.
2.3 Professional Services.
(a) Customer may purchase Professional Services as detailed in an SOW. Any significant changes to the Professional Services require a change order signed by both parties before implementation (“Change Order”), which may entail additional fees. Each Change Order must specify the modifications to the Professional Services and their impact on timing and costs; once signed, the Change Order becomes part of the Order Form.
(b) Customer agrees to provide Supaflow with reasonable access to the Required Information, Customer Data, and the Customer’s equipment and personnel, as necessary to perform the Professional Services. Customer acknowledges that Supaflow’s ability to deliver the Professional Services relies on the Customer’s cooperation. Supaflow will not be responsible for nonperformance due to the Customer’s delay or failure to promptly supply the necessary information and grant access.
(c) Subject to the terms of this Agreement, Supaflow grants the Customer a limited, non-exclusive, non-transferable (except as permitted under Section 11.6 Assignment), non-sublicensable, royalty-free, worldwide license to use, copy, modify, or create derivative works based on any Deliverables solely for the Customer’s internal business purposes related to their use of the Supaflow Product during the Term. If Supaflow incorporates any Supaflow Materials into the Deliverables, it grants the Customer a limited, non-exclusive, non-transferable, royalty-free worldwide license to use, copy, modify, or create derivative works based on that Material, strictly as incorporated into the Deliverables and as reasonably necessary to use the Deliverables. The parties may also agree on additional terms and restrictions regarding the use of Deliverables in a specific SOW, which will then apply only to those Deliverables.
2.4 Affiliates. If any of Customer’s Affiliates wish to make separate purchases of Supaflow Products or Professional Services, that Affiliate shall execute a new Order Form specifically for their entity. Such Customer Affiliate will be bound by this Agreement as if they were a signatory. Customer shall ensure that any claim by a Customer Affiliate hereunder is only brought against Supaflow by the Customer on behalf of that Affiliate.
2.5 Supaflow Partners. This Agreement outlines the terms and conditions under which Supaflow provides Supaflow Products or Professional Services to the Customer, whether purchased directly from Supaflow or indirectly through a Supaflow Partner. Purchases made through a Supaflow Partner will be governed by a separate agreement, such as an ordering document or online order, between the Customer and the Partner. This includes online orders completed by the Customer and confirmed by the Partner (collectively, the “Partner Sales Agreement”). The Partner Sales Agreement will specify, between the Customer and the Partner, details on the quantity of products and services purchased, fees, payments (including refunds), taxes, and renewals. This agreement is solely between the Customer and the Partner and is not binding on Supaflow. Disputes related to a Partner Sales Agreement are handled directly between the Customer and the Partner. If there is a conflict between this Agreement and a Partner Sales Agreement, this Agreement will govern the relationship between Supaflow and the Customer. The Customer agrees that, in connection with Professional Services or Supaflow Products purchased through a Partner: (a) Supaflow may share information with the Partner regarding the Customer’s use and consumption of the products; (b) all payments, refunds, and credits are payable by or to the Partner; and (c) the Partner is not authorized to modify this Agreement or make any warranties, representations, promises, or commitments on behalf of Supaflow.
2.6 Marketplace Customers. If the Customer purchases Supaflow Products, including any eligible Professional Services, through an Authorized Marketplace Provider, such purchases will be governed by the terms available at https://www.supa-flow.io/legal/marketplace-terms.
2.7 Proprietary Rights. Customer owns all rights, title, and interest in and to the Customer Data, Required Information, and Customer’s Confidential Information. Customer grants Supaflow all necessary rights to process and use the Customer Data and Required Information, in each case in accordance with the terms of this Agreement. Supaflow owns and retains all rights, title, and interest in and to the Supaflow Products (including any improvements resulting from Customer feedback or suggestions), System Data, Professional Services, Deliverables, Supaflow Materials, Documentation, and Supaflow’s Confidential Information. All rights not explicitly granted in this Agreement are reserved.
2.8 Feedback. Customer is not required to give Supaflow any suggestions, ideas, enhancement requests, feedback, or recommendations about the features, functionality, or operation of the Supaflow Products or Professional Services (“Feedback”), and Supaflow has no obligation to use any Feedback. If Customer chooses to provide Feedback, Customer grants Supaflow a perpetual, irrevocable, non-exclusive, worldwide, fully paid, sublicensable, and assignable license to incorporate such Feedback into the Supaflow Products or Professional Services or otherwise use it, as long as such use isn’t attributable to Customer. Feedback is provided “as is,” without any warranties.
3. CUSTOMER RESPONSIBILITIES; POWERED BY SUPAFLOW DEPLOYMENTS
3.1 Customer Responsibilities.
(a) General. Notwithstanding anything to the contrary herein, the Customer is solely responsible for (i) the accuracy, content, and legality of all Customer Data and Required Information, and warrants that it has sufficient rights in the Customer Data and Required Information to permit: (A) the Customer's use and receipt of the Supaflow Products, and (B) with respect to SaaS Products, Supaflow’s access to and processing of Customer Data pursuant to this Agreement, and (C) Supaflow’s performance of the Professional Services; and (ii) the acts and omissions of its employees, contractors, and Users, and their compliance with this Agreement.
(b) Personal Health Information. Where required by the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Customer agrees not to upload any personal health information (“PHI Data”) to any SaaS Product unless Customer and Supaflow have signed Supaflow’s Business Associate Agreement (“BAA”), which shall be incorporated by reference into, and governed by, this Agreement. Unless a BAA is in place, Supaflow will have no liability under this Agreement for PHI Data, regardless of anything in this Agreement, or under HIPAA or any other Applicable Laws.
(c) Restrictions and Requirements. The Customer will use Supaflow Products and Professional Services in accordance with the Acceptable Use Policy and the Software and Service-Specific Requirements.
4. CONFIDENTIALITY
4.1 Confidential Information. Subject to the limitations outlined in Section 4.2 (Exceptions), all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) during the Term (as defined below), whether in oral, written, graphic, or electronic form, that the Disclosing Party has marked as confidential or proprietary, identified in writing as confidential or proprietary within 30 days of disclosure, or that a prudent business person in the Receiving Party’s position would consider confidential given the nature of the information or the circumstances of disclosure, shall be considered “Confidential Information.” Confidential Information of Supaflow includes non-public details about features, functionality, pricing (including discounts), performance of the Supaflow Products and Professional Services, the Deliverables (subject to the Customer’s rights to any of its Confidential Information incorporated into the Deliverables), and Supaflow Materials. Customer Data and Required Information are deemed the Customer’s Confidential Information. The terms of this Agreement and any related agreements (including the Order Form and any SOW) shall also be considered Confidential Information of both parties. The Receiving Party agrees to protect the Confidential Information of the Disclosing Party with at least the same level of care it uses for its own confidential information, which shall not be less than a reasonable standard of care.
4.2 Exceptions. Confidential Information does not include information that: (a) is part of the public domain at the time of disclosure; (b) enters the public domain through no fault of the Receiving Party or persons or entities to whom the Receiving Party has disclosed, transferred, or permitted access to such information pursuant to Section 4.3(a) (Nondisclosure and Use); (c) becomes available to the Receiving Party from a legal source on a non-confidential basis without restrictions; (d) is independently developed by the Receiving Party without using or accessing the Disclosing Party's Confidential Information; or (e) is released from confidentiality obligations by written consent of the Disclosing Party.
4.3 Nondisclosure and Use. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any person or entity, except: (a) to employees, agents, and professional advisors of the Receiving Party who need to know such information and are bound by confidentiality agreements at least as protective as this Agreement, or, in the case of professional advisors, are legally obliged to keep such Confidential Information confidential, consistent with this Agreement; or (b) as required by law, such as by a governmental or regulatory authority, securities exchange, or under a valid subpoena or court order. The Receiving Party must immediately notify the Disclosing Party (to the extent permitted by law) of the request's existence, terms, and circumstances so the Disclosing Party can seek appropriate protective measures. The Receiving Party may not use the Disclosing Party's Confidential Information for any purpose other than exercising its rights and fulfilling its obligations under this Agreement.
4.4 Return; Destroy; Protect. On the Disclosing Party’s request, the Receiving Party will return or destroy all Confidential
Information of the Disclosing Party that has been supplied to or acquired by the Receiving Party, other than: (a) records the Receiving Party has a separate legal right or obligation to retain, and (b) copies of such Confidential Information created in the
ordinary course of the Receiving Party’s business and retained in accordance with its internal document retention and
information technology policies. To the extent the Receiving Party retains such Confidential Information, the Receiving Party
will continue to protect such Confidential Information in accordance with Section 4.1 (Confidential Information) and Section 4.3 (Nondisclosure and Use) for so long as it meets the definition of Confidential Information.
4.5 Injunction for Breach. The parties agree that damages would be an inadequate remedy if this Section 4 Confidentiality is breached. The parties also agree that the Disclosing Party can seek injunctive and other equitable relief, in addition to any other rights and remedies available, if there is a breach or threatened breach by the Receiving Party of this Section 4 Confidentiality.
5. SECURITY MEASURES
5.1 Protection of Customer Data. Supaflow will implement administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data, in accordance with the Supaflow security policy available at https://supa-flow.io/security (the “Security Policy”), as posted as of the Effective Date. The Security Policy may be updated by Supaflow without materially reducing the protections. The Security Policy includes measures to prevent access, use, modification, or disclosure of Customer Data by Supaflow personnel, except (a) to provide the applicable Supaflow Product and to prevent or resolve service or technical issues, or (b) as Customer explicitly permits in this Agreement or in writing. For clarity, any data processing, data residency, localization, or similar commitments applicable to Customer Data under this Agreement, the Security Policy, or the DPA apply only to Customer Data and do not apply to Customer Metadata. If applicable, Supaflow’s Data Processing Addendum (available at https://www.supa-flow.io/legal/data-processing-addendum) (“DPA”) is incorporated by reference into this Agreement.
5.2 Deletion of Customer Data. Upon termination or expiration of this Agreement, if Supaflow has any Customer Data, Supaflow shall delete all such Customer Data from its systems without retaining any copies, except for copies retained in accordance with Supaflow’s internal document retention and information technology policies or, in the case of Customer Data that constitutes Personal Data (as defined in the DPA), in accordance with the DPA.
5.3 Customer Responsibilities. Customer is responsible for securing its environment, especially its Source and Destination, as well as the configuration of the Supaflow Products. This includes implementing and managing procedural, technical, and administrative safeguards on its systems and networks that are sufficient to: (a) protect the confidentiality, security, integrity, and privacy of Customer Data; and (b) follow the principle of least privilege when connecting the Supaflow Products to Customer’s data sources and destinations, particularly by granting no more than read-only access to data sources. Customer is also responsible for provisioning Users, including: (i) methods of authenticating Users (such as SSO or industry-standard secure username/password policies); (ii) managing administrative privileges; (iii) revoking access for personnel who no longer need it; and (iv) setting up any API usage securely. Supaflow will have no obligations or liability for any loss resulting from Customer’s security configuration or administration of the Supaflow Products.
6. PAYMENT OF FEES
6.1 Calculation of Fees. Customer will pay Supaflow the applicable fees described in each Order Form (the “Fees”), unless Customer is purchasing a Supaflow Product or Professional Services through a Supaflow Partner, in which case such fees will be payable to the Partner according to the Partner Sales Agreement. All Fees are non-cancelable and non-refundable, except as explicitly stated here. If Customer’s use of a Supaflow Product exceeds the usage or capacity listed on the Order Form, or otherwise requires additional Fees (per this Agreement or the Order Form), Supaflow will invoice Customer retroactively for those extra charges, and Customer agrees to pay the additional Fees as outlined herein.
6.2 Payment Terms. Supaflow will bill the Customer via an invoice, through the marketplace where the original purchase was made, or directly via a credit card if provided. Unless otherwise specified in the applicable Order Form, full payment must be received by Supaflow within 30 days of the invoice date (which may be emailed). If the Customer pays by credit card, the Customer warrants they have the right to use the card and authorizes Supaflow to share the card details—including the number, expiration date, and billing address—with third parties to process payments. Supaflow may add a 3% surcharge for credit card payments. Verification of information may be required before confirming or completing any payment. Except for Fees in a good-faith dispute, unpaid amounts will accrue a finance charge of 1.5% per month on the outstanding balance, or the legal maximum if lower. If the Customer believes an invoice is incorrect, they must contact Supaflow within 60 days of the invoice date to seek an adjustment or credit. All inquiries should be directed to Supaflow’s Customer Support.
6.3 Taxes. All amounts payable by the Customer under this Agreement are exclusive of all applicable sales, use, value-added, excise, property, withholding, or similar taxes, as well as related tariffs and charges (collectively, “Taxes”). The Customer is responsible for paying all Taxes, except for taxes based on Supaflow’s net income. If the Customer is required to pay any such Taxes, they shall do so without any reduction or offset against the amounts owed to Supaflow. If an applicable tax authority requires Supaflow to pay any Taxes that should have been paid by the Customer, Supaflow will notify the Customer in writing, and the Customer will promptly reimburse Supaflow for those amounts.
6.4 Out-of-pocket Expenses. Supaflow will generally provide the Professional Services remotely unless both parties agree in writing otherwise. If Supaflow’s personnel travel at the Customer’s request, the Customer agrees to reimburse our reasonable, actually incurred travel and lodging expenses. While on the Customer’s premises, Supaflow personnel will follow the Customer’s reasonable onsite access policies (provided in writing in advance). For clarity, no such policies will be considered to alter the terms of this Agreement.
6.5 On-Prem Software Usage Calculation. Regarding On-Prem Software, if Customer’s system configuration prevents Supaflow from determining the monthly amounts owed for Customer’s use of such software, then at Supaflow’s request, Customer will provide a monthly report and any other reasonably requested information to enable Supaflow to calculate these amounts. This includes a breakdown of Users, data sources, and destinations for both Customer-internal and PBS usage.
7. TERM, TERMINATION, AND SUSPENSION
7.1 Term. This Agreement begins on the Effective Date and continues until it is terminated as described below (the “Term”). The initial period of each Order Form starts on its effective date and lasts for the subscription term specified therein. If Customer is on a monthly plan, then (a) such Order Form remains active until the applicable monthly plan is canceled; and (b) after cancellation, Customer can reactivate its account by restarting data transfers. If Customer uses any Supaflow Product after the subscription term listed on the Order Form ends, Customer will be billed thereafter, as set forth in the Order Form, for any ongoing use of such Supaflow Product. Except for monthly plans, each Order Form will automatically renew for additional one-year periods under the same terms unless either party gives written notice of nonrenewal at least 60 days before the current subscription period ends.
7.2 Termination. Either party may terminate this Agreement with written notice to the other if there are no Order Forms in effect at that time. Additionally, either party may terminate this Agreement or the relevant Order Form with written notice (a) if the other party materially breaches any terms of this Agreement, any incorporated agreements, or the applicable Order Form—including failure by the Customer to pay amounts when due—and the breaching party does not cure the breach within 30 days after receiving written notice detailing the breach, or immediately if the breach cannot be cured; or (b) unless prohibited by Applicable Law, immediately if a party files for bankruptcy, becomes the subject of an involuntary bankruptcy filing (which is not discharged within 60 days), makes an assignment for the benefit of creditors, or a trustee is appointed for all or a significant part of its assets. Upon termination or expiration, (i) the Customer remains responsible for paying any outstanding balance on the account that was accrued before termination, and will be billed for any unpaid Fees, and (ii) the Customer must immediately stop using the applicable Supaflow Products.
7.3 Survival. All sections of this Agreement that by their nature should survive termination will do so, including accrued rights to payment, and terms and conditions related to proprietary rights, technology restrictions, confidentiality, disclaimers, termination, indemnification, limitations of liability, and the miscellaneous provisions below.
7.4 Suspension. Without limiting Supaflow’s other remedies, including termination rights, set forth in this Agreement, Supaflow reserves the right to suspend Customer’s access to or restrict the use of the Supaflow Products and Professional Services:
(a) If fees are 30 days or more overdue and are not subject to a good faith dispute under Section 6.2 Payment Terms;
(b) if Supaflow determines that such suspension is necessary due to Customer’s breach of Section 3.1(c) Restrictions and Requirements, Section 3.2 Powered by Supaflow Deployments, or Section 11.11 Export Compliance, International Trade Laws;
(c) if Supaflow reasonably believes that suspension is needed to prevent material harm to Supaflow or its Customers, including situations involving denial of service attacks, mail flooding, or other attacks or disruptions beyond Supaflow’s reasonable control; or
(d) when required by applicable law or at the request of a governmental entity.
Whenever possible, Supaflow will notify the Customer in advance of any suspension so they can try to resolve the issue and avoid it.
8. WARRANTIES AND DISCLAIMER
8.1 Mutual. Each of Supaflow and the Customer warrants that: (a) it has the legal power and authority to enter into this Agreement, the Order Form, and any other agreements contemplated hereby, and such agreements constitute a legal, valid, and binding obligation of such party when signed by the other party; (b) the person signing or accepting this Agreement, the Order Form, and any other such agreements on its behalf is a duly authorized representative of such party with the authority to bind such party to such agreements; (c) its entry into this Agreement does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
8.2 Supaflow Warranties. Supaflow guarantees that (i) the Supaflow Product will perform substantially as described in the Documentation and that Supaflow will not significantly reduce the overall functionality of the Supaflow Product during the subscription period, and (ii) the Professional Services will be delivered in a professional and workmanlike manner consistent with industry standards and substantially in accordance with the Order Form or SOW. (i) and (ii) collectively, the “Performance Warranty”. Supaflow will make reasonable efforts to fix any verified breach of the Performance Warranty reported by the Customer. If Supaflow does not do so within a reasonable time after receiving the Customer's report, either party may terminate the relevant Order Form related to the non-conforming Supaflow Product. In such cases, Supaflow will provide a pro rata refund to the Customer for any prepaid subscription fees corresponding to the portion of the subscription term that was terminated. To qualify for these remedies, the Customer must report the breach of the Performance Warranty in sufficient detail within 30 days of discovering the issue with the Supaflow Product or Professional Services. These remedies are the Customer’s exclusive options and Supaflow’s only liability for breach of the Performance Warranty, except that if the breach significantly violates this Agreement, the Customer may terminate this Agreement as outlined in Section 7.2(a) (Termination).
8.3 Trial Products and Pre-commercial Features. From time to time, the Customer may have the opportunity to use a Trial Product or new features in an alpha, beta, or similar test (“Pre-commercial Features”). Pre-Commercial Features are optional and will be marked as such so that the Customer can decide whether to opt in. Either party can end the Customer’s use of Trial Products and Pre-Commercial Features at any time and for any reason. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE TRIAL PRODUCTS AND PRECOMMERCIAL FEATURES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES, REPRESENTATIONS, CONDITIONS, INDEMNITIES, SERVICE LEVEL COMMITMENTS, OR SUPPORT OR OTHER OBLIGATIONS OR LIABILITIES, AND Supaflow DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO THEM.
8.4 DISCLAIMERS. SUPAFLOW DOES NOT WARRANT THAT THE SUPAFLOW PRODUCTS OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED FROM USING THE SUPAFLOW PRODUCTS OR PROFESSIONAL SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8 WARRANTIES AND DISCLAIMER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUPAFLOW PRODUCTS AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND SUPAFLOW DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE PROFESSIONAL SERVICES ARE NOT SUBJECT TO ANY UPDATES, MAINTENANCE, OR SUPPORT, EXCEPT AS PROVIDED IN THE SOW. NOTWITHSTANDING ANYTHING HEREIN, SUPAFLOW IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY PLATFORMS. CUSTOMER IS SOLELY RESPONSIBLE FOR TESTING ANY ON-PREMISE SOFTWARE BEFORE USING IT IN A LIVE ENVIRONMENT, PROTECTING ITS DATA AND INFORMATION BY INSTALLING THE MOST RECENT COMPUTER VIRUS DETECTION PROGRAMS, AND CREATING BACKUP COPIES IN A TIMELY MANNER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SUPAFLOW DOES NOT WARRANT AND EXPRESSLY DISCLAIMS THAT ANY ON-PREMISE SOFTWARE LICENSED WILL BE SECURE OR AVAILABLE AT ANY SPECIFIC TIME OR LOCATION, AND THAT THE RESULTS OF USING THE ON-PREMISE SOFTWARE WILL MEET CUSTOMER REQUIREMENTS. SUPAFLOW SHALL NOT BE LIABLE FOR ANY DAMAGE, INCLUDING LOSS OR CORRUPTION OF DATA, OR RESPONSIBLE FOR RESTORING SUCH DATA, IN EACH CASE WHERE SUCH DAMAGE RESULTS FROM THE CUSTOMER’S INADEQUATE TESTING OF ANY ON-PREMISE SOFTWARE BEFORE DEPLOYMENT IN A LIVE ENVIRONMENT.
9. INDEMNIFICATION
9.1 By Supaflow. Supaflow will indemnify and defend the Customer and its Affiliates (as authorized under Section 2.4 Affiliates) and their respective officers, directors, and employees (collectively, “Customer Indemnified Parties”) against any damages and costs finally awarded against or settled by Supaflow (including reasonable attorneys’ fees) in connection with any third-party claims, actions, and demands (collectively, “Claims”) alleging that the Supaflow Product (excluding Customer Data) infringes a third party’s trademark, issued patent, or copyright, or that Supaflow misappropriated such third party’s trade secrets in developing the Supaflow Product (a “Supaflow IP Claim”). These obligations do not apply to portions or components of the Supaflow Product (a) made entirely or partly according to Customer specifications, (b) combined with other products, processes, or materials where the alleged infringement relates to such combination, (c) used by Customer not strictly according to this Agreement, or (d) in the case of On-Prem Software, (i) modified by or on behalf of Customer after delivery by Supaflow or (ii) where Customer continues the infringing activity after being notified or after receiving an update that could have prevented the infringement. If Customer’s use of the Supaflow Product becomes, or appears likely to become, the subject of a Supaflow IP Claim, Supaflow shall, at its option and expense, either A) replace or modify the Supaflow Product to be non-infringing, provided the new version retains substantially similar features and functionality, B) obtain a license for Customer to continue using the Supaflow Product, or C) if neither option is feasible commercially, terminate this Agreement or the relevant Order Form and refund any prepaid Fees on a pro rata basis for the terminated portion of the subscription period.
9.2 By Customer. Customer will indemnify and defend Supaflow and its Affiliates, including its and their respective officers, directors, and employees (collectively, “Supaflow Indemnified Parties”), from and against any damages and costs finally awarded against the Supaflow Indemnified Parties or agreed to in settlement by Customer (including reasonable attorneys’ fees) related to any Claims arising from or connected to Customer Data or Required Information or their use with the Supaflow Products or Professional Services, as applicable. This is valid provided that Supaflow’s use of the Customer Data or Required Information complies with this Agreement.
9.3 Process. If the Customer Indemnified Parties or Supaflow Indemnified Parties (each an “Indemnified Party”) becomes aware of any Claim it believes it should be indemnified under Section 9.1 Indemnification - By Supaflow or Section 9.2 Indemnification - By Customer, as applicable, the Indemnified Party will provide prompt written notice of such Claim to Supaflow or Customer (the "Indemnifying Party"). Failure to do so will not release the Indemnifying Party from its indemnification obligations unless its ability to defend is materially prejudiced. The Indemnifying Party shall have the exclusive authority to defend and settle any such Claim, but will not settle or admit liability without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, unless it unconditionally releases the Indemnified Party from all related liability. The Indemnified Party will reasonably cooperate with the Indemnifying Party in defending and settling the Claim and has the right to fully participate, at its own expense, in the defense with counsel of its choosing.
10. LIMITATIONS OF LIABILITY
10.1 NO CONSEQUENTIAL DAMAGES. EXCEPT AS SET FORTH IN SECTION 10.5, EXCLUDED LIABILITIES, NEITHER PARTY NOR ITS AGENTS AND SUPPLIERS, INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AND SUPPLIERS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. THIS INCLUDES THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, ANTICIPATED GOODWILL, REVENUE, DATA, OR DATA USE, WHETHER FORESEEABLE OR NOT, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 GENERAL CAP. EXCEPT AS SET FORTH IN SECTION 10.3, SPECIAL CAP, AND SECTION 10.5, EXCLUDED LIABILITIES, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY, INCLUDING ITS AFFILIATES AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE CLAIM (THE “GENERAL CAP”).
10.3 SPECIAL CAP. THE AGGREGATE, CUMULATIVE LIABILITY OF SUPAFLOW, INCLUDING ITS AFFILIATES AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS, FOR ANY BREACH OF ITS OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY) OR SECTION 5 (SECURITY MEASURES) THAT RESULTS IN THE UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA BY SUPAFLOW, SHALL NOT EXCEED TWICE THE AMOUNT PAID OR PAYABLE BY THE CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM ("SPECIAL CAP").
10.4 NO CUMULATIVE LIABILITY. IN NO EVENT WILL SUPAFLOW, ITS AFFILIATES, OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND SUPPLIERS BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND SPECIAL CAP, AND SUCH CAPS WILL NOT BE CUMULATIVE. THE MONETARY CAPS SET FORTH IN THIS SECTION 10 SHALL APPLY, ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENTS GOVERNING CUSTOMERS’ USE OF THE SUPAFLOW PRODUCTS OR PROFESSIONAL SERVICES ENTERED INTO BETWEEN SUPAFLOW AND ANY OF CUSTOMER’S AFFILIATES, INCLUDING WITHOUT LIMITATION, AS CONTEMPLATED BY SECTION 2.4, AFFILIATES.
10.5 EXCLUDED LIABILITIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS SECTION 10 LIMITATIONS OF LIABILITY, LIABILITY IS NOT LIMITED FOR THE FOLLOWING: (A) EACH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (B) INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (C) SUPAFLOW’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.1 INDEMNIFICATION BY SUPAFLOW FOR SUPAFLOW IP CLAIMS; (D) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.2 INDEMNIFICATION BY CUSTOMER; AND (E) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 PAYMENT OF FEES. INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11. MISCELLANEOUS
11.1 No Agency; No Third-Party Rights. This Agreement does not create any agency, partnership, joint venture, or employment relationship. Neither party has the authority to bind the other to any third party in any way. For clarity, there are no third-party beneficiaries under this Agreement.
11.2 Notices. All notices under this Agreement must be in writing and will be considered effectively given as follows: when personally delivered, upon receipt; when transmitted by e-mail, upon receipt; when sent by recognized overnight delivery service with next-day delivery, on the following day; and when sent by certified or registered mail with return receipt requested, upon receipt at each party's address provided on the current Order Form.
11.3 Marketing Permissions. Supaflow may use and display the Customer’s name and logo (“Customer Marks”) on its website and marketing materials to identify the Customer as a client. Supaflow may also invite the Customer to participate in marketing initiatives (such as a case study, press release, testimonial, or event), and if the Customer agrees, Supaflow may use the resulting materials (“Marketing Content”) in its marketing and promotional efforts at its discretion. Supaflow will own all rights, title, and interest in the Marketing Content (excluding the Customer’s intellectual property rights in the Customer Marks used within). Supaflow will stop using the Customer Marks and Marketing Content upon termination or expiration of this Agreement or at the Customer’s written request.
11.4 Enforceability. If any provision of this Agreement is declared invalid or unenforceable, the remaining provisions will stay in full effect, and this Agreement will be amended as necessary to achieve, as closely as possible, the same legal and commercial outcome originally intended by the parties. If such a modification is not possible under Applicable Law, the problematic provision will be severed, and the rest of this Agreement will continue in full force and effect.
11.5 Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond a party's reasonable control, including acts of God, severe weather, war, invasion, riot, civil unrest, government laws, orders, embargoes, strikes, or lockouts (a “Force Majeure Event”), that party shall promptly notify the other party about the cause and effect of such failure and the expected duration of its inability to perform. The affected party shall then be excused from performing during the occurrence of such event for a period equal to the duration of the Force Majeure Event; however, the party affected must take all reasonable actions to minimize the impact and work toward ending the event.
11.6 Assignment. This Agreement cannot be assigned by either party without the other party’s consent, whether by operation of law or otherwise; however, either party may assign this Agreement to its (a) Affiliate or (b) successor in the event of a merger, acquisition, or sale of all or substantially all of the assets related to this Agreement, unless the successor is a competitor of the other party. Any other attempted assignment will be void.
11.7 Integration; Order of Precedence. This Agreement fully reflects the parties' mutual understanding and supersedes all prior written and oral agreements, communications, and other understandings related to the subject matter. The parties agree that any term or condition included in Customer’s purchase order or any other Customer documentation is invalid, even if accepted or executed by Supaflow after the Effective Date. In case of any conflict or inconsistency among these documents, the order of precedence will be: (a) the applicable Order Form(s); (b) the BAA; (c) the DPA; (d) the Software and Service-Specific Requirements; (e) the Acceptable Use Policy; (f) this Agreement; and (g) the applicable Documentation.
11.8 Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding unless executed by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing and signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be signed in writing or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic formats, all of which will constitute one and the same instrument and agreement.
11.9 Governing Law and Jurisdiction; Fees. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action related to this Agreement must be filed in the United States District Court for the District of Delaware or the state courts of the State of Delaware. The parties hereby accept, generally and unconditionally, the jurisdiction, resolution method, and venue mentioned above. The prevailing party is entitled to recover all reasonable fees, costs, and expenses incurred in enforcing its rights, including reasonable attorneys’ fees.
11.10 Interpretation. For the purposes of this section, “including” means “including without limitation.” A reference to a statute or statutory provision shall be construed as a reference to it as amended, extended, or re-enacted from time to time, and shall also include all subordinate legislation enacted under that statute or statutory provision. Any reference to the requirement for something to be given, received, or similar in “writing” or “written” shall encompass and allow this to be done via email, provided the email is sent to an authorized representative of the party. Unless the context indicates otherwise, words in the singular include the plural, and words in the plural include the singular; words indicating gender include all genders. The headings used in this Agreement, along with its division into sections, schedules, exhibits, appendices, and other divisions, do not affect its interpretation.
11.11 Export Compliance; International Trade Laws. Supaflow Products may be subject to laws and regulations related to international transactions, including export controls, import controls, and trade sanctions enforced by the United States and other applicable jurisdictions. Customer acknowledges and agrees that it will comply with all applicable export controls, import controls, trade sanctions, and relevant international trade laws and restrictions in its use of the Supaflow Products. This includes not exporting or re-exporting, directly or indirectly, the Supaflow Products in violation of applicable laws, and not permitting access to or use of any Supaflow Products in Afghanistan, Belarus, Russia, or Venezuela (collectively, “Designated Jurisdictions”), or in any country subject to trade embargoes or prohibitions. Customer also agrees not to use Supaflow Products to support controlled technology, industries, goods, or services, or any other restricted use, without valid governmental licenses or permissions. Customer will not submit any data controlled under the U.S. International Traffic in Arms Regulations to any Supaflow Product. Each party further affirms that it (and, in the case of Customer, each User and/or Affiliate accessing the Supaflow Product) is (a) not located in a country or jurisdiction subject to trade embargoes or comprehensive sanctions relevant to this agreement, (b) not listed on any governmental or quasi-governmental denied party or debarment list related to this agreement, and (c) not owned directly or indirectly by individuals listed on such lists.
11.12 Government Terms. Supaflow Products, Professional Services, and related software and Documentation are considered “commercial products,” “commercial items,” “commercial computer software,” and “commercially available off-the-shelf items” as defined in FAR 2.101 and other relevant government procurement regulations, including agency supplements. This Agreement reflects (a) standard commercial practices for acquiring the Supaflow Products and Professional Services, and (b) terms and conditions that Supaflow normally provides to other Customers. This Agreement applies to the Customer’s use of the Supaflow Products and Professional Services in accordance with Applicable Law. If these terms do not meet the Customer’s needs or are inconsistent with federal law in any way, the Customer must immediately stop using the Supaflow Products and/or Professional Services. If this Agreement conflicts with Applicable Law (such as FAR Part 12.212(a)), those conflicting terms are deleted and unenforceable for any Order Forms. Supaflow created the Supaflow Products and Professional Services solely at private expense. All other use is prohibited.