Terms of Service

“Aggregated Data” means any non-personally identifiable, technical, statistical or analytical data gathered or generated directly by use of the Services, which Refraction Point collects, gathers and aggregates periodically as part of its services and does not include identifiable Customer Data.

“Authorized User” means any individual that accesses or uses the Services solely on behalf and for the benefit of Customer, and as authorized by Customer.

“Customer Data” means (1) all data, information, records and other content provided, uploaded, transmitted, inputted or otherwise submitted by Customer or its Authorized Users under this Agreement during the use of or in connection with the Services, including data generated by the Customer’s Endpoint (or Customer Clients’ Endpoints, if applicable) and sent to the Services (2) and the Customer-specific output that is generated by Authorized Users use of the Services.

“Customer Personal Information” means Personal Information contained within Customer Data that is Processed by Refraction Point on behalf of Customer in its performance of the Services under this Agreement.

“Documentation” means Refraction Point’s standard user manuals, specifications and/or related documentation generally made available by Refraction Point to users of the Services.

“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container, virtual machine image, appliance, or cloud service.

“Intellectual Property Rights” means the rights held by the owner of a copyright, patent, trademark or trade secret, including the rights to: (i) copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works; (ii) exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods; (iii) use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) apply for any of the foregoing rights, and all rights in those applications.

“Services” means the LimaCharlie SecOps Cloud Platform, including Software, APIs, and other cloud-based resources, as set forth in an Order.

“Order” means all written order forms or other ordering documentation, including online subscription forms, entered into by the parties hereunder and referencing this Agreement, identifying the applicable Services to be made available by Refraction Point, and containing the pricing, subscription term, and other specific terms and conditions applicable to the Services.

“Party” means each of Refraction Point and Customer.

“Personal Information” shall have the meaning of such term or like terms set forth in the Privacy and Data Security Laws.

“Privacy and Data Security Laws” means all privacy and data protection laws and regulations applicable to Refraction Point’s Processing of Personal Information under the Agreement.

“Process” and inflections thereof means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Professional Services” means any professional services related to Customer’s use of the Service, such as consulting, implementation, or training services, provided by Refraction Point to Customer as expressly identified in the Order.

“Refraction Point IP” means the Services, the Documentation, and all intellectual property provided to Customer (and/or any applicable Authorized Users) in connection with the foregoing.

“Refraction Point Property” means: (i) the business process, management and analytics technologies of Refraction Point including, without limitation, any algorithms, analyses, data, databases, documentation, formats, forecasts, formulae, inventions, know-how, methodologies, processes, tools, trade secrets, products; and (ii) any and all derivative works or other modifications of, or enhancements to, any of the foregoing.

“Software” means the installable software through which Customer may integrate with the Services.

“Third Party Products and Content” means any applications, products, services, extensions or content that interoperate with the Service and that are provided by Customer or a third party, including applications, products or services available through Refraction Point’s Add-Ons Marketplace.

Orders. From time to time, Refraction Point and Customer may enter into Orders describing the specific Services to be provided by Refraction Point. Each Order will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein.

Provision of Access. Subject to the terms and conditions in this Agreement, Refraction Point grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access the features and functions of the Services during the term set forth in the Order, solely for use by Authorized Users and solely for the benefit of, or in relation to, the operation of Customer’s business and, if permitted in an Order, on behalf of Customer’s customers (the “Customer Clients”). Refraction Point will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services (the “Access Protocols”) and the Documentation. If Customer provides the Services with usernames and passwords from third party systems, Customer represents and warrants that it has the full right to provide that information to Refraction Point. Customer acknowledges and agrees that Customer will be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which would be a breach of this Agreement if undertaken by Customer will be deemed a breach of this Agreement by Customer. Customer will make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Services and will cause Authorized Users to comply with such provisions.

Usage Restrictions. Customer will not, and will not permit any Authorized Users to: (i) copy or duplicate any of the Refraction Point IP; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Refraction Point IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Refraction Point IP, or attempt to do any of the foregoing, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Refraction Point IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Refraction Point in each instance; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Refraction Point IP; (v) remove, obscure or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Refraction Point IP; (vi) authorize or permit use of the Refraction Point IP by persons other than Authorized Users; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights in Section 2.2 above. Customer will ensure that its use of any of the Refraction Point IP complies with Refraction Point’s obligations to any third party, provided that Refraction Point has notified Customer of such obligations, and with all applicable laws, statutes, regulations or rules, and export and import requirements. When using the Services, Customer will comply with the Documentation, any other documentation or written requirements provided by Refraction Point to Customer, and any best practices and industry specifications. Customer will use any data warehouse functionality provided as part of the Services to store only that Customer Data which is necessary to take full advantage of the Services. Customer acknowledges that Refraction Point may restrict data transmission if data transmitted does not reflect the most efficient manner in which to store or use the Services, or if data transmitted is stored for a purpose other than utilization of the Services.

Suspension. Notwithstanding anything to the contrary in this Agreement, Refraction Point may temporarily suspend Customer’s and any Authorized User’s access to all or any portion of the Refraction Point IP if: (i) Refraction Point reasonably determines that (a) there is a threat to or attack on any of the Refraction Point IP; (b) Customer’s or any Authorized User’s use of the Refraction Point IP disrupts or poses a security risk to the Refraction Point IP or any other customer or vendor of Refraction Point; (c) Customer or any Authorized User is using the Refraction Point IP for fraudulent or illegal activities; or (d) Refraction Point’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of Refraction Point has suspended or terminated Refraction Point’s access to or use of any third party services or products required to enable Customer to access the Refraction Point IP (each such suspension under this Section 2.4, a “Service Suspension”). Refraction Point will provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Refraction Point IP following any Service Suspension. Refraction Point will promptly resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. REFRACTION POINT WILL HAVE NO LIABILITY FOR ANY DAMAGES, LIABILITIES, LOSSES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR PROFITS) OR ANY OTHER CONSEQUENCES THAT CUSTOMER OR ANY AUTHORIZED USER MAY INCUR AS A RESULT OF, IN CONNECTION WITH, OR RELATING TO A SERVICE SUSPENSION.

Professional Services. If Professional Services are purchased in a Order, Refraction Point will provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.

Unpaid Services. If Customer chooses to use the free tier of the Services (the “Free Services”), Refraction Point will make such Free Services available to Customer free of charge unless otherwise agreed in writing by the parties, until the earlier of: (a) the end of the Free Services period for which Customer agreed to use such Free Services; or (b) termination of the Free Services by either Party in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE FREE SERVICES ARE PROVIDED “AS IS” AND REFRACTION POINT MAKES NO REPRESENTATION OR WARRANTY, AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS, WITH RESPECT TO ANY FREE SERVICES. REFRACTION POINTS’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE FREE SERVICES IS ONE THOUSAND DOLLARS ($1,000). CUSTOMER SHALL NOT USE ANY FREE SERVICES OTHER THAN FOR ITS INTERNAL USE UNLESS APPROVED BY THE COMPANY IN WRITING. ANY CUSTOMER DATA ENTERED INTO CUSTOMER’S FREE SERVICES ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE SERVICES.

Use of Services. Customer will: (a) be responsible for Authorized Users’ compliance with this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify Refraction Point of any such unauthorized access or use; and (c) use the Services only in accordance with applicable laws and government regulations.

Customer Data. Customer grants to Refraction Point a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third party service providers acting on Refraction Point’s behalf, such as Refraction Point’s hosting services provider, only: (a) to provide, maintain, and update the Service; (b) to prevent or address service or technical problems or at Customer's request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Refraction Point acquires no right, title or interest under this Agreement in or to any Customer Data. Customer is responsible for the accuracy, truthfulness, lawfulness, consistency, and completeness of Customer Data. Customer represents and warrants that (i) it is and will remain in compliance with all applicable legal requirements, including Privacy and Data Security Laws, including relating to the collection, use, processing, security, disclosure and transfer of Customer Data that it provides or makes available to Refraction Point, and (ii) it has all rights, licenses, consents and permissions and has provided all notices required to provide or make available Customer Data to Refraction Point and to enable Refraction Point’s collection, use, processing, security, disclosure and transfer of such Customer Data as contemplated herein. Customer represents and warrants that Refraction Point’s collection, use, processing, security, disclosure and transfer of Customer Data in accordance with the terms of this Agreement will not violate any legal requirements, including Privacy and Data Security Laws. Refraction Point shall have no obligation or responsibility to back up, archive, or otherwise preserve any Customer Data. Customer is solely responsible for maintaining adequate backup copies of all such Customer Data. CUSTOMER AGREES AND UNDERSTANDS THAT CUSTOMER AND NOT REFRACTION POINT IS SOLELY RESPONSIBLE FOR ANY CUSTOMER DATA, INCLUDING ANY CUSTOMER DATA THAT CUSTOMER PROVIDES OR MAKES AVAILABLE TO THIRD PARTIES OR THAT IT INSTRUCTS REFRACTION POINT TO MAKE AVAILABLE TO THIRD PARTIES. PROVIDED CUSTOMER DATA IS PROCESSED BY REFRACTION POINT IN ACCORDANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT, CUSTOMER HEREBY RELEASES REFRACTION POINT FROM ALL LIABILITY RELATED TO CUSTOMER DATA.

Customer Personal Information. With respect to any Customer Personal Information Processed by Refraction Point on behalf of Customer, as described further in Refraction Point’s Data Processing Addendum (“DPA”), the Parties agree to comply with the terms of the DPA. The DPA, as applicable, shall be incorporated within, and shall be considered part of, the Agreement and references to the Agreement herein shall include the DPA, as applicable. Notwithstanding anything to the contrary in this Agreement, Customer Personal Information shall not be considered Confidential Information for purposes of this Agreement.

Supplemental Terms. Certain extensions, features and functionality of the Service (“Supplemental Tools”) are subject to Refraction Point’s Supplemental Terms and Conditions (the “Supplemental Terms”). Notwithstanding any provision to the contrary in this Agreement, if Customer enables, accesses or subscribes to such Supplemental Tools, Customer shall be subject to the applicable Supplemental Terms and Conditions, as updated from time to time by Refraction Point.

Fees Payable. You agree to pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable in accordance with the Services. You must provide Refraction Point with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or ACH account of a payment provider (each, a “Payment Provider”) as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or ACH account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing refraction Point with your credit card number or ACH account and associated payment information, you agree that Refraction Point is authorized to immediately invoice your account for all fees and charges as they become due and payable and that no additional notice or consent is required. You agree to immediately notify Refraction Point of any change in your billing address or the credit card or ACH account used for payment hereunder. Refraction Point reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.

Disputed Charges. Customer must notify Refraction Point in writing of any dispute or disagreement with invoiced amounts within 15 days after the date of invoice. Absent such notice, Customer will be deemed to have agreed to the invoiced amounts on expiration of the 15-day period.

Late Charges. Refraction Point reserves the right to charge, and Customer agrees to pay, a late charge equal to one and one-half percent (1½%) per month or the highest amount permitted by applicable law, whichever is less, on any amount not paid when due that is not the subject of a good faith dispute with respect to which Customer has provided timely notice under Section 4.2, from the due date until paid in full.

Taxes. All amounts payable under this Agreement will exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties, and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Refraction Point’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder or the provision of Services. Customer will make all payments to Refraction Point under this Agreement free and clear of, and without reduction for, any withholding taxes. Any taxes imposed on any payments to Refraction Point will be Customer’s sole responsibility and Customer will, upon Refraction Point’s request, provide Refraction Point with official receipts issued by the appropriate taxing authority, or such other evidence as Refraction Point may reasonably request, to establish that those taxes have been paid.

A La Carte Services and Fees. In addition to the subscription fees set forth above, Refraction Point offers certain paid services made available on an as-used basis (“A La Carte Services”). A La Carte Services may subject Customer to fees charged per usage or transaction volume. By using an A La Carte Service, Customer agrees to pay the fees incurred at the time of usage. Fees due with respect to the A La Carte Services will be invoiced monthly. Pricing for A La Carte Services is set forth within the Services.

Ownership of Confidential Information. The Parties acknowledge that in connection with the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the other Party is required to maintain as confidential. For purposes of this Agreement “Confidential Information” means any material or information relating to a Party’s research, development, products, product plans, services, customer lists, markets, software, developments, inventions, processes, formulae, technologies, designs, drawings, marketing methods and plans, finances, and other business information and trade secrets that a Party (“disclosing Party”) treats as proprietary or confidential. Without limiting the foregoing, the Documentation, and any databases (including any data models, structures, non-Customer specific data and aggregated statistical data contained therein) of Refraction Point will constitute Confidential Information of Refraction Point. Subject to Section 3.4, Customer Data is Confidential Information of Customer. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or a third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

Mutual Confidentiality Obligations. Each Party (“receiving Party”) agrees: (i) to use the disclosing Party’s Confidential Information only for and in connection with the Services; (ii) that it will not reproduce the disclosing Party’s Confidential Information and will hold in confidence and protect the disclosing Party’s Confidential Information from dissemination to, and use by, any third party except as expressly permitted by this Section 5.2 or the disclosing Party; (iii) to restrict access to the disclosing Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of, and are bound to treat such Confidential Information in accordance with, the terms of this Agreement; and (iv) upon termination or expiration of this Agreement or upon earlier request of the disclosing Party, to return or destroy all of the disclosing Party’s Confidential Information, including copies, in its possession. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the receiving Party will first have given written notice to the disclosing Party and made a reasonable effort to obtain a protective order; and (y) to establish a Party’s rights under this Agreement, including to make any required court filings.

Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that the receiving Party can demonstrate: (i) was publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving Party; (iii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving Party’s possession free of any confidentiality obligations at the time of disclosure; (v) is independently developed by the receiving Party without use of, or access to, the disclosing Party’s Confidential Information; or (vi) is approved for release or disclosure by the disclosing Party without restriction.

Refraction Point. Refraction Point warrants (a) that the Services will conform in all material respects to the Documentation when accessed and used in accordance with the Documentation and the Access Protocols and (b) Refraction Point will perform Professional Services in a professional manner. Provided that Customer notifies Refraction Point in writing of any breach of the foregoing warranty during the Term, Refraction Point will, as Customer’s sole and exclusive remedy, provide the support described in Section 6.3 (Support Services) or, at Refraction Point’s option, refund the fees paid by Customer for the Services which gave rise to the breach.

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Support Services. Subject to the terms and conditions of this Agreement, Refraction Point will exercise commercially reasonable efforts to provide support for the use of the Services in accordance with its standard policies and procedures.

Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ANY SERVICES PROVIDED OR LICENSED BY REFRACTION POINT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND REFRACTION POINT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, QUALITY, MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. REFRACTION POINT MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY WARRANTY, THAT IS BASED ON TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. REFRACTION POINT DOES NOT WARRANT THAT THE SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

LIMITATION OF LIABILITY; DISCLAIMER OF DAMAGES. IN NO EVENT WILL REFRACTION POINT BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES, EVEN IF REFRACTION POINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF REFRACTION POINT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN PAID TO REFRACTION POINT BY CUSTOMER UNDER SECTION 4.1 DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement including, without limitation, the economic terms, would be substantially different.

Exclusions. Nothing in this Agreement, including the foregoing limitations of liability set out in this Section, shall apply: (i) to a Party’s indemnification obligations or any Claim in relation to a breach thereof, (ii) to the willful or intentional misconduct of either Party or its respective personnel, (iii) Claims for personal injury, death or property damage caused by either Party or its respective personnel, or (iv) the infringement or misappropriation by a Party or its personnel of the other Party’s intellectual property rights.

Third Party Products and Content. If Customer enables Third Party Products and Content for use with the Service: (a) any use by Customer or its Authorized Users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) Refraction Point does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with the Service, and Refraction Point will not be responsible for any use, disclosure, modification, or deletion of such Customer Data by such providers; (d) Customer further acknowledges that providers of Third Party Products and Content may have their own data use agreements, privacy policies, or terms governing their collection, use, processing, and disclosure of Customer Data, and it is Customer’s responsibility to review and accept such terms prior to enabling or using any Third Party Products and Content; and (e) Refraction Point makes no representations, warranties, or commitments regarding the data practices, data security, or data use by any provider of Third Party Products and Content, and disclaims any liability arising from such providers’ use of Customer Data.

Refraction Point Indemnity. Refraction Point will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Services infringe any U.S. patent, copyright, trademark or trade secret.

Exclusions. Section 7.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any Authorized User in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Refraction Point if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Data (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).

Customer Indemnity. Customer will indemnify, defend and hold harmless Refraction Point, its directors, officers, and employees (each a “Refraction Point Indemnified Party”) from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 6, and (b) arising out of any Customer Indemnity Responsibility.

Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.

Infringement. If the Services are, or in Refraction Point’s opinion, are likely to become, the subject of any infringement-related claim, then Refraction Point will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Services; (b) replace or modify the infringing technology or material so that the Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order pursuant to which the Refraction Point Services are provided and give Customer a refund for any pre-paid but unused Fees.

THE PROVISIONS OF THIS SECTION 7 STATE REFRACTION POINT’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.

Ownership. As between the Parties, subject to the rights granted in this Agreement, Refraction Point and its licensors retain all right, title and interest in and to the Refraction Point Property and Refraction Point IP and its components, and Customer acknowledges that it neither owns nor acquires any rights in and to the foregoing not expressly granted by this Agreement. If Customer or any Authorized User provides Refraction Point any feedback or suggestions regarding the Service, then Customer grants Refraction Point an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User. Unless otherwise set forth in the Order, Refraction Point retains exclusive ownership of all work product created by Refraction Point in connection with its performance of professional services. Unless otherwise set forth in the Order, Refraction Point retains exclusive ownership of all work product created by Refraction Point in connection with its performance of Professional Services.

Data Analytics. Without limiting the foregoing, Customer hereby grants Refraction Point the right to aggregate and anonymize Customer Data gathered by Refraction Point in performing the Services including information that evidences actual or potential threats or vulnerabilities in order to perform statistical and internal system analytics, and such other analytics as Refraction Point may perform from time to time to influence, inform and enhance its Services (“Threat Analytics”). For the sake of clarity, Data Analytics are at all times considered Refraction Point Property under this Agreement and shall not be considered Customer Data or Customer Confidential Information.

Aggregated Data. As between Refraction Point and Customer, all right, title and interest in the Aggregated Data and all Intellectual Property Rights therein belong to and are retained solely by Refraction Point. Customer acknowledges that Refraction Point will be compiling Aggregated Data based on Customer Data input into the Services and Customer agrees that Refraction Point owns the Aggregated Data and may use such information to the extent and in the manner required by applicable law or regulation and for any purpose including, without limitation, for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information. For the sake of clarity, Aggregated Data is at all times considered Refraction Point Property under this Agreement and shall not be considered Customer Data or Customer Confidential Information.

Reservation of Rights. Except as expressly provided in this Agreement, nothing contained in this Agreement will be construed to assign or grant to Customer any right, title, or interest in or to the Intellectual Property Rights of Refraction Point or any ownership rights in or to the Refraction Point Property, or the software, services and methods employed by Refraction Point to perform the Services.

Term. This Agreement will commence on the effective date set forth in an Order (“Effective Date”) and will remain in effect for the initial term set forth in an Order (the “Order Form Initial Term”) unless terminated in accordance with Section 9.3. Unless stated otherwise in an Order, upon the expiration of the applicable Order Form Initial Term, such Order will automatically renew for successive periods equal to the length of the Order Form Initial Term (each, an “Order Form Renewal Term” and together with the Order Form Initial Term, the “Term”) unless either party notifies the other in writing of an intent not to renew at least thirty (30) days prior to the expiration of the Order Form Initial Term or the then-current Order Form Renewal Term. Customer agrees that Refraction Point may modify the fees for each Order Form Renewal Term by providing Customer with written notice of such modification at least 60 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable.

Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be affected only through a written notice to the breaching Party, specifically identifying the breach(es) on which such notice of termination is based. Unless otherwise specified in this Agreement, the breaching Party will have a right to cure the breach(es) within 30 days of receipt of such notice. This Agreement will terminate immediately upon notice in the event that cure is not achieved within such 30-day period or, if the breach is incapable of cure within 30 days, the breaching Party has not made substantial steps toward a cure within that 30 days. Without limiting the foregoing, Refraction Point may immediately terminate this Agreement upon written notice in the event that Customer breaches Section 5 or becomes insolvent or enters bankruptcy during the term of this Agreement. The termination of this Agreement terminates all Orders.

Effect of Termination. Upon any termination or expiration of this Agreement, each Party will: (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media including, without limitation, online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and remaining payable hereunder.

Survival. The provisions of Sections 1, 3.4, 4.4, 5, 6, 7, 8, 9.3, 9.4 and 10 will survive the expiration or termination of this Agreement.

Applicable Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, irrespective of conflicts of law, and, except as set forth in Section 10.2, any dispute arising under or related to this Agreement will be litigated exclusively in the state and federal courts located within the State of California.

Equitable Relief. The Parties acknowledge and agree that a violation or breach of Sections 2 or 5 of this Agreement, will cause severe and irreparable injury to the non-breaching Party with no adequate remedy at law. Accordingly, in the event of any actual or threatened violation or breach of any of the aforementioned Sections, the non-breaching party will be entitled to immediate equitable relief to prevent or stop such breach or threatened breach, without having to prove irreparable harm or posting a bond, from any court of competent jurisdiction.

Force Majeure. Except with respect to payment obligations under this Agreement, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, terrorist acts, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than 90 days, the other Party may terminate this Agreement upon 30 days’ written notice.

Notices. All notices required by or relating to this Agreement will be in writing and will be sent by certified mail, postage prepaid, to the Parties and addressed, if to Customer, as set forth in an Order, and if to Refraction Point, to:

Refraction Point, Inc.
440 N Barranca Ave #5258
Covina, CA 91723 USA
Attention: Legal
Email: legal@limacharlie.io

or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by email, provided that the sender receives and retains confirmation of successful transmittal to the recipient and sends a duplicate of the notice to the receiving Party by certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender. Email notices will be effective on the date indicated in the confirmation.

Independent Contractors. In making and performing this Agreement, Customer and Refraction Point are independent contractors and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.

Amendment. No amendment to this Agreement will be valid unless made in writing and signed by the authorized representatives of the Parties.

Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and signed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance, or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

Export. Each Party agrees not to export, directly or indirectly, any data acquired from the other Party or any products utilizing such data to countries outside the United States of America, which export may be in violation of the United States export laws or regulations or the laws and regulations of any other applicable jurisdiction

No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

Headings. The headings in this Agreement are inserted merely for convenience of reference and will not affect the meaning or interpretation of this Agreement.

Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter and, except as specifically provided in this Agreement, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided herein.