FL3XX Master Software & Services Agreement

Terms used with capital letters have the meaning prescribed under this clause or in the body of the Agreement.

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a Party, where “Control” means the direct or indirect control of greater than 50% of the voting rights or equity interests of a Party or the power to direct or cause the direction of the management and/or business strategy of that Party.

“Agreement” means this MSSA, together with its schedules, including the data protection agreement as available at https://www.FL3XX.com/legal, and any other references herein to any other terms and conditions (such as, without limitation, any Orders and the Service Level Agreement), and which are included herein by reference, excluding, however any terms and conditions thereof added unilaterally by Customer.

“Customer” means the entity signing or otherwise accepting this Agreement.

“Customer Content” means each and any integrations, flows, materials and/or creations of any kind created by the Customer or its Users using the Products, independently from FL3XX, either individually, or in collaboration with a third-party, excluding however the Products and FL3XX’s IP Rights.

“Customer Data” means any data, content, document, material, information or Customer Content that the Customer or its Users provide to FL3XX directly or indirectly (such as that the Customer or the Users import into Products or that are accessed by FL3XX in connection with, or for the purpose of, provision of any Services).

“Documentation” means any FL3XX official technical and functional description of the Software as made available by FL3XX, excluding any publicity and marketing materials.

“Fee(s)” means the fees payable for the license to use the Products or benefit from the Services and any expenses incurred in the performance of Services, as set forth in the applicable Order.

“IP Rights” means patents, right to patent and file for patent, rights to inventions, copyright and related rights, trademarks, registered designs, trade secrets, trade names and domain names, rights in computer software and in databases, content, know-how, look and feel, and any other intellectual property rights or rights of a similar nature, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted renewals or extensions of such rights, as well as the rights to claim priority therefrom, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Subscription Term” means the duration of the license to use the Software, as stipulated in the Order or hereunder, as the case may be.

“Order” means the ordering form/document or statement of work placed by the Customer and accepted by FL3XX, placed with FL3XX and accepted by FL3XX, and excluding any terms and conditions thereof added unilaterally by Customer or a FL3XX partner. All Orders are deemed subject to this Agreement, irrespective of whether a reference to this Agreement is made in the Order or not.

“Personal Data” means information related to an identified or identifiable natural person as defined by, as applicable, Regulation (EU) 2016/679 (GDPR) and other applicable privacy laws.

“Services” means professional services (such as customizations and integrations) as specified in an Order (if any), excluding Support.

“Software” means: (i) software products licensed to Customer as specified hereinunder and in the Orders, all as developed by or for FL3XX and/or its Affiliates, and as provided to Customer thereunder; (ii) any development kits, protection mechanisms, plugins, connectors, extensions, scripts or any other software made available to Customer, during Support or pursuant to warranty obligations; (iii) all new releases, versions, modifications, updates, patches, improvements, enhancements, or similar derived works thereto (and which may be licensed as separate products); (iv) any complete or partial copies of the foregoing; (v) Documentation; (vi) derived works of all the foregoing; (vii) all IP Rights related to all of the foregoing, excluding open source software components, Customer Data or Third-Party Services.

“Support” means maintenance and service levels, applicable to the Software during the Subscription Term as available at https://www.FL3XX.com/legal.

“Products” means each and together, the (i) Software identified in the applicable Order, (ii) materials developed by FL3XX for Customer, including during performance of Services, and (iii) FL3XX IP Rights.

“Third-Party Services” means the cloud applications, cloud service endpoints, data services, software, application programming interfaces, materials, data and content of third parties which may be accessed using the Products.

“User” means either Party’s employees, representatives, and contractors, and in the case of the Customer, also other individuals under Customer’s control and which the Customer allows to access and use the Products.

2. LICENSE USE AND IP RIGHTS

2.1 License. Subject to the terms and conditions of this Agreement, FL3XX grants the Customer and its Affiliates, during the Subscription Term, a limited, non-exclusive, non-sublicensable, non-transferable, worldwide right to access and use the Products specified in the applicable Order, solely for their internal business purposes and in accordance with the applicable Documentation.

2.2 Trial Version. If FL3XX approves Customer’s use of Trial Version (“Trial Version” means Products designated by FL3XX as “trial”, “evaluation,” “not for resale”, “pre-release” or “alpha” or “beta” version, or other similar designation), the terms herein applicable to Products also apply to access and use of such Trial Versions, as modified by the following prevailing terms: (i) the duration of such access and use shall be as indicated by FL3XX, provided that either FL3XX or the Customer can terminate (before expiry) such access or use at any time and immediately upon written (including e-mail) notice to the other Party; and (ii) the Trial Version is provided “AS-IS” without warranty of any kind, and FL3XX disclaims all warranties, indemnification obligations, Support obligations, and other liabilities and obligations for the Trial Version. The offer of any Trial Version will not create any obligation for FL3XX to continue to develop, support, repair, offer for sale, or in any other way continue to provide or develop any such Trial Version. Trial Versions may be available, free of charge, for the limited period provided by FL3XX when Customer signs up to access the Products on a “trial basis” or similar.  Thereafter, the payment terms set out in clause 6 will apply.

3. INTELLECTUAL PROPERTY

3.1 IP Rights. This Agreement does not grant either Party any rights, by implication, waiver, estoppel, or otherwise, to the other Party’s IP Rights. FL3XX, its Affiliates and their licensors own and retain all IP Rights to the Products, including without limitation any integrations, code, patches, materials, data, know-how, background technology, information or similar assistance otherwise provided to Customer owns its Customer Data. All uses in this Agreement of the terms "sell," "sale," "resell," "resale," "purchase," "price," and similar terms mean the purchase or sale of a license under this Agreement. Customer acknowledges that if it provides any suggestions or feedback to FL3XX, it does so voluntarily and FL3XX will be entitled perpetually and irrevocably to use any suggestions or feedback, in any way and for any purpose in relation to the Products.

3.2 Independent Development and Residuals. The Parties agree that nothing in this Agreement will limit or restrict FL3XX's right to: (i) create derivative works using the Customer Content shared voluntarily by the Customer, or develop, or have developed, components that may be similar to, or may perform similar functions to, the Customer Content, provided that FL3XX shall not disclose any Confidential Information with non-affiliated third-parties and (ii) use any general information, ideas, concepts, know-how, processes, techniques, programming routines and subroutines, methodologies, processes, skills, or expertise which are retained in the unaided memory of FL3XX’s Users.

4. SERVICES

4.1 Support. FL3XX will provide Customer with Support for the Software during the applicable Subscription Term as provided under the Service Level Agreement and under the Order.

4.2 Services. Services shall be agreed upon in an Order. Unless otherwise expressly agreed in the Order, the Customer shall provide FL3XX with all information, materials, access, etc. required by FL3XX and necessary to perform the Services promptly after request. FL3XX shall not be liable for any delay caused by the Customer’s own delay or the Customer’s failure to cooperate in the provision of the Services, if any.

4.3 Customer’s Undertakings. The Customer represents and warrants that it has the appropriate rights to allow FL3XX to use and/or modify any Customer Data, software, data, information or products as part of any Services, and that the Customer has all required rights, licenses and consents to use and to allow its Users to use the Products and the Customer FL3XX’s provision of the Services and of the Products is contingent upon the warranty provided herein. Customer grants FL3XX, its Affiliates and subcontractors (if any) a non-exclusive, limited license to use the Customer Data to perform the Services (if any). Customer will provide FL3XX with necessary access to the Customer’s premises and systems, personnel, documentation and records, and facilities and will appoint a contact person having authority to make decisions, for FL3XX to timely perform any Services.

5. ACCEPTABLE USE

5.1 Acceptable Use. Customer represents and warrants that it and its Users will use the Products in accordance with this Agreement and the Documentation. Without prejudice to the generality of the foregoing and to the greatest extent permitted by the applicable law, Customer agrees for and that itself and its Users, directly or indirectly or through others, to the following:

1. will not circumvent any technological protection measures set by FL3XX to control access to the Products and will not exceed any use limitations;
2. will not use, and will not encourage others to use, the Products or Services (i) to inspect or analyse the Products or the outputs for benchmarking or comparison purposes, (ii) to design modify, create a derivative work or create any program that performs functions similar to the functions performed by the Products or to analyse the Products therefor, (iii) to acquire any technical specifications and gain a competitive technological or business advantage, (iv) to misappropriate or infringe any rights or violate any laws or contracts;
3. will not disassemble, decompile or reverse engineer the Products or any portion of it; will not alter, adapt, merge, modify, translate, decompile, develop versions or derivative works, reverse engineer, upgrade, improve, extend interfere or disable features, functions or functionalities of the Products or Services or otherwise derive source code therefrom or otherwise reduce them to human readable form, except to the extent expressly permitted under applicable law and if it is essential to do so for the purpose of achieving interoperability of the Products with another software program, and provided that, Customer has first requested with at least 90 days prior written notice, that FL3XX provides the information necessary to achieve such interoperability and FL3XX has unreasonably not made such information available;
4. must not remove, alter, modify or appropriate or use as their own, any proprietary markings included therein;
5. must not use the Products to operate in a service bureau, managed service or commercial hosting services environment, unless expressly approved by FL3XX in writing.
6. will obtain and maintain all authorizations and consents required to use the Products, the Services, the Personal Data or the Customer Data as contemplated in this Agreement;
7. must not resell, sublicense, assign, transfer, rent, lease, lend or otherwise distribute the rights acquired under this Agreement;
8. must not use the Products for high-risk activities, which include uses such as the operation of military flights, air traffic control, life support systems, or other activities where the use or failure of the Products could lead to death, personal injury, or environmental harm.

5.2 Users Access. Customer may allow its Users to use the Products and access the Services as provided in clause 2.1 above, provided that: (i) Customer ensures and undertakes its Users and Affiliates comply with the terms of this Agreement, (ii) Customer will not grant any additional rights, use or access other than set forth herein and will retain exclusive control over the Products, and (iii) Customer shall be liable towards FL3XX as if their acts and omissions were Customer's Upon request, Customer will provide FL3XX with details and use reports of all Users and Affiliates having received access to the Products. Customer shall promptly inform FL3XX of any unauthorized access thereto.

5.3 Third-Party Licenses. The Products may contain or may be used with third party components, including open-source software, which are the property of their respective owners. Notwithstanding anything to the contrary herein, use of the open-source software will be subject to the license terms and conditions applicable to such open-source software, to the extent required by the applicable licensor.

5.4 Third-Party Services. Customer may use the Products in conjunction with Third-Party Services, subject to and in compliance with all terms and conditions of the Third-Party Services, bearing the entire risk of such use. The Customer is responsible for determining which Third-Party Services are accessed and connected to by the Customer while using the Products, and for the use of such Third-Party Services. FL3XX does not control or own any Third-Party Services, and the access to and use of such Third-Party Services, including the availability and uptimes related to such Third-Party Services, is solely determined by the relevant third parties that control the Third-Party Services. Customer is solely responsible for ensuring that the sharing of data through the Products to these Third-Party Services complies with the applicable data related laws.

6. ORDERS AND PAYMENT TERMS

6.1 Orders. Regardless of whether this Agreement is explicitly referenced, all Orders between the Parties are governed by the terms of this Agreement. The commercial terms agreed in an Order shall apply only to the Products and specific details of that particular Order and shall not extend to any subsequent Orders under the Agreement, unless explicitly agreed by the Parties in those subsequent Orders.

6.2 Payment. Unless otherwise agreed in the applicable Order, FL3XX will issue an invoice for each Order as follows: (i) Software Fees will be invoiced in advance for the entire agreed upon Subscription Term on or about the Order’s signing date; (ii) Services Fees will be invoiced in fully advance on or about the Order’s signing date. Unless otherwise agreed by the Parties in writing, the payment term will be 30 calendar days as of the date when each invoice is issued. All invoices will only be delivered electronically to Customer. All Orders are non-cancellable and, save as otherwise provided in this Agreement, all Fees are non-refundable. Upon termination of an Order or of this Agreement, all Fees due under the respective Order or under this Agreement, (i) that have already been invoiced will immediately become due and payable, and (ii) Fees not already invoiced, will be immediately invoiced by FL3XX and become due and payable within 30 (thirty) days of invoice date. Customer will pay all reasonable travel expenses, hotel accommodations, and any other out of pocket expenses properly and reasonably incurred by FL3XX in connection with providing the Services. Except as otherwise provided in writing such expenses will be charged at cost and invoiced together with the Services or separately.

6.3 Failure to Pay. FL3XX may charge interest at a monthly rate of the lesser of 1% (one percent) per month or the maximum rate permitted by applicable law on any overdue Fees, from the due date until the date the overdue Fees, including the applicable interest and any debt-recovery related costs and expenses, until such are paid in full. In the event the Customer’s payment default exceeds 30 (thirty) calendar days, FL3XX may, at its sole discretion and without any additional remedy term: (a) suspend FL3XX’s performance of any obligations under this Agreement until the full payment of the due amounts, in accordance with this Agreement; (b) terminate the Agreement with immediate effect, upon notice to the Customer, without any court intervention or other formalities. Customer understands and agrees that should a payment failure occur, the access to the Products may be suspended by FL3XX without any notice.

6.4 Taxes. All Fees are exclusive of any taxes, such as sales, use, value added tax, withholding, any other taxes, however designated. All payments will be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or because of any taxes, levies imports, duties, charge, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal, or other authority as required by law. FL3XX is responsible for taxes and any employment obligations due for its personnel performing the Products. If the Customer is required by law to withhold any taxes from its payments to FL3XX, Customer must provide FL3XX with official documentation and certificates to support such payments.

6.5 Changes. FL3XX is free to establish the Fees in its discretion. FL3XX will not change the Fees applicable to an Order already accepted by it, unless a scrivener’s error occurs. FL3XX will notify Customer of any change in Fees and such change will become effective upon Customer placing a new Order or the renewal of any current Subscription Term following such notice.

7. INDEMNIFICATION

7.1 FL3XX Indemnification. FL3XX, at its expense, will defend Customer against any claim, action, or legal proceeding made against Customer by a third-party non-affiliated with the Customer alleging that the Products, during the Subscription Term and as delivered by FL3XX, infringe the third party’s patent or copyright or that FL3XX misappropriated the third party’s trade secret (“IP Claim”) and will indemnify against any damages finally awarded to Customer by a court of competent jurisdiction (or settlement amounts agreed to in writing by FL3XX) in the limits set out in this Agreement.

7.2 Customer Indemnification. Customer, at its expense, will defend FL3XX against any claim, action, or legal proceeding made against FL3XX by a third-party non-affiliated with FL3XX arising out of, or in connection with Customer Data or Customer’s use of the Products and will indemnify against any damages finally awarded to FL3XX by a court of competent jurisdiction (or settlement amounts agreed to in writing by Customer) in the limits set out in this Agreement.

7.3 Conditions. A Party’s obligations to defend and indemnify (“Indemnifying Party”) are contingent on the Party seeking defense (“Indemnified Party”) to (i) promptly notify the Indemnifying Party of any claim in writing; (ii) cooperate with the Indemnifying Party in the defense of the claim; (iii) grant the Indemnifying Party sole control of the defense or settlement of the claim (provided that the Indemnifying Party shall not enter into any settlement that admits liability on behalf of the Indemnified Party or imposes any obligations on such Indemnified Party other than cessation of use of the infringing Products); (iv) not make any admissions about the claim without the Indemnifying Party’s prior written consent, and (v) take all reasonable measures to mitigate the damages. The remedies in this section 7 (Indemnification) are the sole and exclusive remedies of the Indemnified Party and sole liability of the Indemnifying Party with respect to an IP Claim.

7.4 Exclusions. FL3XX will have no liability for any claim arising from: (i) use of the Products or Services in breach of the Agreement; (ii) modification of the Products or Services by anyone other than FL3XX; (iii) failure by Customer to install the latest updated version of the Products, as instructed by FL3XX, to avoid infringement, or security vulnerabilities or malfunctions; (iv) Third-Party Services, Customer Data products or materials or their combination with the Products or Products, if the Products or Services not be infringing without this combination.

7.5 Remedies. If a claim alleges that the Products might infringe the IP Rights of a third party, or if in FL3XX 's judgment, such a claim may arise, FL3XX may, at its option: (i) procure the right for Customer to continue using the Products under the terms of the Agreement; (ii) replace/modify the impacted components to avoid the alleged infringement; or (iii) terminate Customer’s license to the relevant component of the Products and refund the associated prepaid and unused Fees for the infringing component.

8. LIMITATION OF LIABILITY

8.1 Damages Exclusion. Neither Party will be liable to the other for any special, indirect, moral, consequential, incidental, punitive, or exemplary damages, loss of profits, loss of revenue or goodwill, loss or corruption of data, or interruption of Under no circumstances will FL3XX or its Affiliates be liable for any claims that may be asserted, granted or imposed against, arising from, or in connection with Third-Party Services, Customer Data and FL3XX disclaims any liability resulting therefrom.

8.2 Liability Cap. Except for a Party’s acts of fraud or wilful misconduct and except for a party’s indemnification obligations hereunder, a Party’s maximum aggregate liability for all damages (individually and together) under or relating to this Agreement will not exceed the Fees paid to FL3XX under this Agreement for the relevant Products in the 12 (twelve) months before the initial claim giving rise to such damages.

8.3 Applicability.  The foregoing will apply only to the extent permitted under applicable law, regardless of whether the claim arises from contract or tort and regardless of the theory of liability, but will not limit payment obligations under this Agreement, and irrespective of whether the other Party has been advised or not of the possibility of such claim or damage. The Agreement allocates the risks between FL3XX and the Customer, and the Fees for Products reflect this allocation of risk and limitations of liability. Nothing in the Agreement will limit either Party’s ability to seek equitable relief.

9. WARRANTY

9.1 Software and Services Warranty. FL3XX warrants that, during the Subscription Term, the Software will substantially conform to the Documentation, provided that the Software is used in accordance with the terms of this Agreement, the Documentation, and the applicable law. To the extent permitted by law, FL3XX’s sole liability under this warranty will be, in FL3XX’s reasonable commercial discretion, a repair or replacement of the relevant Software, or if FL3XX determines that the foregoing remedy is not commercially reasonable, FL3XX may terminate Customer’s license to the relevant component of the Software.

9.2 Warranty Exclusions. Subject to the above limited warranties, the Products are provided on an "AS-IS" and “AS AVAILABLE” basis. To the maximum extent allowed by applicable law, neither FL3XX nor its Affiliates, licensors or their personnel, make any warranty of any kind (express, implied, statutory or otherwise) and FL3XX specifically disclaims all warranties, including merchantability, fitness for a particular purpose or non-infringement or the ability of the Products to integrate or interoperate with other software or services or perform uninterrupted or error-free.

10. TERM AND TERMINATION

10.1 Subscription Term. Unless otherwise provided in the Order, the Subscription Term for the Software will be of 12 months (“Subscription Term”). The Subscription Term will automatically renew for additional periods equal thereof, until either Party provides written notice of non-renewal to the other Party at least sixty (60) days before expiration of the respective Subscription Term.

10.2 Term of the Agreement. This Agreement is effective as of the Effective Date and will continue until terminated by either Party as described under this Agreement. Any Order will terminate upon the termination of this Agreement.

10.3 Termination. In addition to any other provisions of this Agreement or those of the applicable law, this Agreement may be terminated as follows:

1. by either Party, immediately upon written notice to the other, if the other Party has made a material breach hereunder and, to the extent the breach can be cured, has not been cured within thirty (30) days from the notice date; it is deemed a material breach, among others, the breach of the payment obligations, of the “Acceptable Use” section, of the other Party’s Intellectual Property Rights; or
2. by either Party, immediately upon written notice to the other Party: (a) when, due to the applicable law or on account of a regulator’s or similar body’s decision or ordinance, it becomes unlawful or illegal to continue the performance of this Agreement; or (b) material breaches of Intellectual Property Rights;
3. by FL3XX, with thirty (30) days written notice, in case of a change of control as prescribed in the Change of Control section;
4. automatically, if there is no effective or outstanding Order subject to this Agreement for a period longer than 6 months. This means that for subsequent Orders, the Parties shall enter into a new master software and services agreement;
   

10.4 Effect of Termination. Unless otherwise agreed by the Parties in writing, termination of an Order will not trigger termination of this Agreement. Upon termination of this Agreement, termination of an Order or expiration of any Subscription Term: (i) the license and rights for the respective Products or Services will immediately terminate and Customer must, at its expense, remove and delete all copies thereof; (ii) FL3XX will provide Customer access to, and the ability to export the Customer Data for a period of three (3) months thereafter, at FL3XX's then-current rates for the Products.

10.5 Suspension. FL3XX may suspend the use of and access to the Services and to the Products: (i) if necessary to comply with the applicable law and/or any third-party rights deemed by FL3XX to be reasonably enforceable; (ii) if Customer breaches the Acceptable Use section. If FL3XX suspends Customer’s use or access, then as Customer’s sole remedy: (a) FL3XX will provide Customer with notice on the cause for suspension to the extent legally permitted, and (b) the suspension will be only to the extent required to resolve the cause for suspension. If the cause for suspension cannot be resolved as indicate hereinunder, then FL3XX may terminate this Agreement.

11. COMPLIANCE

11.1 Export Control. Customer agrees to comply with all Export Laws (meaning and including U.S. Export Administration Regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and economic sanctions administered by the U.S Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), European Commission regulations, United Nations Security Council resolutions, and other similar national or international regulations) related to Customer’s and its Users access to and use of the Services and Products. Customer represents and warrants that it and its Users are not (i) located, organized, or resident in a country or territory that is subject to a U.S. trade embargo (currently, Crimea, Cuba, Iran, North Korea, and Syria); or (ii) identified on, or owned or controlled by any party identified on, any applicable sanctions or restricted party list, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Entity List, Denied Persons List, or Unverified List, administered by BIS.

11.2 Audit. FL3XX may, at its expense, verify that Customer’s use, access, installation, or deployment of the Products complies with the terms of this Agreement. and Customer agrees to provide all assistance and support. If the verification discloses a non-conformity Customer will immediately address it.

11.3 Confidentiality. This Agreement supersedes any applicable non-disclosure agreement between the Parties with respect to use of the Products hereunder. Information shared by the Parties, or their Affiliates, under this Agreement will be deemed confidential if it is disclosed in any form or manner, marked as, or reasonably considered, confidential, and includes without limitation, Products, trade secrets, know-how, business operations, plans, strategies, customers, and pricing whether or not marked, designated or otherwise identified as "confidential" (“CI”). CI shall also include the existence of the terms and conditions of this Agreement, and any Order placed hereunder. CI excludes any information that (i) is or becomes public, through no fault of the recipient; (ii) was rightfully acquired by or already known to the recipient without an existing confidentiality obligation; or (iii) is independently developed by the recipient without the use of discloser’s CI. For instance, technical and support data related to the Products are considered FL3XX’s The receiving Party will not use CI for any purpose other than the purpose of this Agreement. The receiving Party will treat the CI with no less than reasonable care and will not use or disclose CI to anyone, except to its Users, Affiliates, advisors or consultants, who need to know the CI for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as in this section. The receiving Party may disclose CI: (i) under a written and signed permission document from the disclosing Party; (ii) as necessary to comply with applicable law, a valid Order of a court of law or governmental body, or with mandatory rules of an equivalent binding authority after using reasonable efforts to provide advance notice of such disclosure to the disclosing Party. The obligations of confidentiality and non-use contained in this Section “Confidentiality” shall remain in full force and effect during the term of this Agreement and for a period of 3 (three) years thereafter. Nothing in this Agreement will be construed as a representation or inference that each Party will not develop or acquire products, for itself or others, that compete with the products, systems, or methods contemplated by the other Party's CI, as below defined, provided that the Party has not done so in breach of this Agreement. Upon termination of this Agreement, the receiving Party shall remove or return the Confidential Information at the other Party’s request, provided that any retained Confidential Information shall remain subject to the confidentiality obligations hereunder.

11.4 Security Commitments. FL3XX represents and warrants that it will maintain an information security program designed to protect the confidentiality, integrity, and availability of Customer Data. This program includes administrative, technical, and physical safeguards consistent with industry standards and in alignment with FL3XX’s ISO/IEC 27001 certification and SOC 2 Type II controls. FL3XX will:

1. Implement and maintain access controls, encryption, logging, monitoring, and vulnerability management in line with recognized best practices;
2. Regularly test and audit its information security controls to confirm effectiveness and remediate deficiencies;
3. Ensure that personnel with access to Customer Data are bound by appropriate confidentiality obligations and receive periodic security training;
4. Promptly notify Customer of any security incident that materially impacts Customer Data, in accordance with applicable law and the Data Processing Agreement; and
5. Maintain compliance with applicable data protection and privacy laws, including the GDPR, when acting as a processor of Personal Data on behalf of Customer.

12. GOVERNING LAW AND DISPUTE RESOLUTION

12.1 Amicable settlement. The Parties agree, as a prior condition for any claim, to settle amicably any dispute arising out of or relating to this Agreement within ninety (90) days from the applicable notice. To the maximum extent permitted by applicable law, the Party not complying with this section will cover, as applicable, the litigation of arbitration costs of the other Party, irrespective of the outcome.

12.2 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Austria, excluding its conflict of laws provisions. For any dispute and claims arising out of or relating to the Agreement (contractual, tort or otherwise), the Parties consent to the exclusive jurisdiction in, and the exclusive venue of, the courts in Vienna, Austria. The Parties agree to waive any forum non conveniens exceptions.

13. MISCELLANEOUS

13.1 Subcontractors. FL3XX may use subcontractors to perform the Services and the Support and will be responsible for performance of the foregoing by such subcontractors as for its own actions under this Agreement.

13.2 Data. Customer must not use personal health data with the Software, unless use of personal health data is allowed by FL3XX in the appropriate legal documentation. Personal data shared by Customer and processed by FL3XX as a processor on behalf of Customer will be governed by the privacy policy published by FL3XX and data processing agreement provided at https://www.FL3XX.com/legal.

13.3 Analyses Information. FL3XX and its Affiliates may process data, technical information, usage, and telemetry from the Products and any use thereof, to make available and provide products features, perform its obligations under this Agreement, create indices, statistics, offer Support, provide bug fixes, run systems diagnostics, and monitor error and performance, subject to the confidentiality obligations hereunder.

13.4 Entire Agreement and Order of Precedence. This Agreement is the entire understanding between FL3XX and the Customer with respect to the subject matter of this Agreement and supersedes any prior written or oral agreement between the Parties with respect to such subject matter. Unless otherwise prescribed hereunder, any amendment to this Agreement will be made in writing and will be signed by authorized representatives of the Parties. For Trial Version, the Order may be an electronic document or statement issued by FL3XX and accepted by Customer including through its use. Any terms or conditions submitted to FL3XX do not form part of this Agreement and are void, unless specifically amended in writing and signed by the authorized representatives of the Parties. Any Product components released after the Effective Date that is subsequently purchased or licensed by Customer may be governed by specific terms to be made available by FL3XX upon such purchase. Any conflict of interpretation in the terms of this Agreement will be settled in the following Order of precedence: (i) Order accepted by the Parties, (ii) additional terms for new features/functionalities provided to Customer, and (iii) this instrument. If any provision hereof is or becomes illegal, invalid or unenforceable for any reason, all other provisions of this Agreement will remain in full force and effect.

13.5 Force Majeure. Neither Party shall be responsible to the other for the non-performance or delay in performance (other than the payment of money) occasioned by force majeure as defined by applicable law.

13.6 Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, transferred, delegated, or otherwise disposed of by either Party without the prior written consent of the other Party, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, FL3XX may, without the prior consent of the Customer, assign, transfer, delegate or otherwise dispose of, this Agreement, or any of its rights, interests, or obligations hereunder to any of its Affiliates.

13.7 Change of Control. Customer must notify FL3XX within thirty (30) days of it or its Affiliate (i) being acquired by, selling substantially all of its assets to, merging with, or changing its Control in favour of, a direct competitor of FL3XX, or (ii) changing its main object of activity into a business competing FL3XX.

13.8 No TUPE. For the avoidance of doubt, the license granted under this Agreement or the provision of Products, including Support, by FL3XX to Customer or its Affiliates does not represent a transfer of undertaking within the meaning of any national, state, and local laws and regulations (including European Union, where applicable) on the safeguarding of the employees’ rights in the event of transfer of undertakings, businesses, or parts thereof. However, in the event that any public authority or body or any employee (or former employee) of FL3XX or its Affiliates claims or alleges or otherwise is deemed that he/she has transferred to or become employed by the other Party as a result of this Agreement, by virtue of the aforementioned legal provisions (“Transfer Claim”), the one Party which becomes aware of any Transfer Claim shall give notice to the other party of such Transfer Claim as soon as reasonably practicable and the Parties should co-operate in good faith in Order to challenge such Transfer Claim.

13.9 Permission to refer. Customer agrees that FL3XX may display Customer and refer to it as a FL3XX customer on its website and other materials.

13.10 Notices. Unless otherwise provided herein, notices under this Agreement will be in English language only, and must be sent by e-mail, with a suggestive subject, to the attention of the other party’s legal department or primary point of contact, using the addresses listed in the signatures table below (or notified in writing) and will be effective on the next business day after being sent. In the absence of a valid Customer e-mail address, FL3XX can use an e-mail address publicly available, or any email addresses previously used in communication with Customer. Notices on updates, security fixes, vulnerabilities and other technical information, will be sent to Customer e-mail address(es) enrolled for those purposes in FL3XX’s database, if the case. If the notice is sent using personal courier or overnight courier, the notice shall be deemed “given” when verified by written receipt. Customer may change the notification email address through the admin console function in the Software.

13.11 Waiver and Reservation of Rights. Failure or delay in exercising any right, power or remedy under this Agreement shall not operate as a Any rights and remedies prescribed in this Agreement are cumulative and not exclusive of any others provided by law. Any waiver of any breach of this Agreement shall not be deemed to be a waiver of any subsequent breach. Nothing here creates a legal partnership, joint venture, agency, or employment relationship between Customer and FL3XX or their Affiliates.

13.12 No Third-Party Beneficiaries. To the greatest extent permitted by the applicable law, FL3XX shall be entitled to rely upon, and shall be entitled to enforce, the provisions of this Agreement in relation to Customer’s Users and Customer undertakes to ensure FL3XX is able to do so. For the avoidance of doubt, the Users are not third-party beneficiaries to this Agreement.

13.3 Counterparts. In addition to all other acceptance/consent provisions and without limitation to their generality and enforceability, each Party agrees that their electronic signatures, whether digital or encrypted, are intended to authenticate this writing and to have the same force and effect as handwritten ink signatures. Electronic signature means any electronic symbol or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile, click-through or e-mail electronic signatures.

13.4 Survival. The following sections and clauses will survive expiration or termination of this Agreement for any reason: Intellectual Property, Order and Payment Terms, Limitation of Liability, Customer Undertakings, Compliance, Governing Law and Dispute Resolution, Notices, Waiver and Reservation of Rights, and Survival, in addition to any other provisions that, by their content, are intended to survive the performance, expiration or termination of the Agreement (whether or not expressly stated).

FL3XX GmbH | MSSA | Version 1.0 | 27 October 2025 | Confidential