Foam

These Terms of Use (these "Terms") govern your access to and use of the Platform and Services made available by Garage Tech, Inc. DBA Foam ("Foam," "we," "us," or "our"). By accessing or using the Services, by clicking a button or checkbox indicating acceptance, you ("you," "your," or "Customer") agree to be bound by these Terms. If you are accessing or using the Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity to these Terms, in which case "you" and "Customer" refer to that entity. If you do not agree to these Terms, you may not access or use the Services.

You must be at least 18 years old and capable of forming a binding contract to use the Services. The Services are not directed to children, and we do not knowingly permit use of the Services by anyone under 18.

1. Defined Terms

"Agreement" means these Terms. If you have entered into a separate written agreement with Foam (such as a Master Services Agreement or Order Form), that agreement governs to the extent of any conflict with these Terms.

"AI Tools" means artificial intelligence models, tools, and other technologies.

"Customer Data" means any and all data and information, including but not limited to: Logs, Traces, Spans, and Metrics that is provided by you or Users to Foam or otherwise accessed or processed on behalf of Customer by Foam in connection with Foam's provision of the Services.

"Customer Technology" means any repositories provided to Foam in connection with Foam's provision of the Services.

"Customer-Owned Items" means any Output provided by Foam in accordance with the Services, including, but not limited to: Root Cause Analysis, Proposed Code Patches, Prompts for agents.

"Fees" means the fees payable for the Services, as set forth on the applicable pricing page or in your subscription plan.

"Input" means Customer Data submitted into AI Tools by you or your Users, or by Foam on your behalf.

"Output" means AI-Tool generated text, information, or other materials or output resulting from Input.

"Platform" means Foam's proprietary online platform.

"Prohibited Data" means any: (i) Social Security numbers or other government-issued identification numbers; (ii) cardholder data as defined under the Payment Card Industry Data Security Standard (PCI-DSS); (iii) tax return data; (iv) "consumer reports" as defined under the Fair Credit Reporting Act; (v) biometric data, biometric information, biometric identifiers, or information within the scope of similar terms defined in privacy laws; (vi) data pertaining to identifiable children under 18 years of age; (vii) criminal histories; or (viii) information that constitutes "special categories of data," "sensitive personal information," or "sensitive data" as defined in privacy laws (including, without limitation, special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation).

"Services" means access to the Platform and any other Foam services described on the applicable pricing page or in your subscription plan.

"User" means any individual authorized by you to access or use the Services on your behalf.

2. The Services

Subject to your continued compliance with the terms and conditions of this Agreement, during the Term (as defined below), Foam will provide the Services you have subscribed to through the Platform subject to any applicable limitations set forth therein.

Foam may modify, update, or discontinue features of the Services from time to time in its sole discretion.

3. Your Responsibilities

3.1 Customer Materials

You will timely provide to Foam access to all (i) systems, software, and related infrastructure you intend to use with the Services ("Customer Technology") and (ii) Customer Data (collectively, the "Customer Materials"). Foam will not be responsible or liable for failures or delays in providing the Services to the extent resulting from (A) your delay or failure to provide any Customer Materials in a timely manner, (B) the inaccuracy or incompleteness of any Customer Materials, or (C) your acts or omissions that interfere with Foam's provision of the Services. If any of the foregoing prevent or delay Foam's provision of the Services, Foam may suspend provision of the Services.

3.2 Customer Data; Prohibited Data

As between the parties, you are solely responsible and liable for the accuracy, quality, integrity, legality, reliability, security, and appropriateness of all Customer Data. You will not use the Services with Prohibited Data and acknowledge and agree that the Services are not intended to meet any legal obligations for such use. Notwithstanding any terms to the contrary in this Agreement, Foam has no liability for use of the Services with Prohibited Data.

3.3 Account Security

You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account and any User account. You will promptly notify Foam of any unauthorized use of your account or any other breach of security of which you become aware.

3.4 General Use Restrictions

The Services are provided solely for your internal use purposes. You will not, in whole or in part: (i) modify, copy, disclose, alter, translate, or create derivative works of the Services; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Services; (iii) decompile, disassemble, decode, translate, or reverse engineer the Services, or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the Services, or reduce the Services by any other means to a human-perceivable form; (iv) copy, frame, or mirror any part or content of the Services; (v) access the Services in order to build a competitive product or service; (vi) interfere with or disrupt the integrity or performance of the Services, or input, upload, transmit, or otherwise provide any harmful code to or through the Services; (vii) use any data mining, robots, or similar data gathering or extraction methods; (viii) attempt to gain unauthorized access to the Services or their related systems or networks, or exceed any User limitations or other limitations applicable to your subscription; (ix) disclose to any third party any performance information or analysis relating to the Services; (x) remove, alter, or obscure any proprietary notices in or on the Services; or (xi) cause or permit any individual to do any of the foregoing.

You will not assert, nor authorize, assist, or encourage any third party to assert against Foam or its affiliates any patent infringement or other intellectual property rights infringement claim regarding the Services. You are solely responsible for (A) the acts and omissions of your Users, and any act or omission of any User will, for purposes of this Agreement, be deemed an act or omission of Customer, and (B) all activities that occur on your or any User's account.

4. Fees

You will pay all Fees to Foam as set forth on the applicable pricing page or in your subscription plan. Unless otherwise specified, Fees are billed in advance and charged to your designated payment method on a recurring basis for the then-current billing cycle. You will pay all invoiced Fees within 30 days after the date of the applicable invoice.

You will pay all Fees in U.S. dollars and without setoff, counterclaim, deduction, recoupment, or withholding of any kind for amounts owed or purportedly owed by Foam under this Agreement, applicable law, or otherwise. You are responsible for all taxes on all Fees, excluding any taxes on Foam's net income. All Fees are non-refundable and non-cancelable. Any amounts not paid when due will bear interest at 1.5% per month or the maximum rate allowable by law, whichever is less.

Without limiting Foam's other rights or remedies, if you do not timely pay all Fees when due, Foam may (i) suspend provision of the Services until such Fees are paid or (ii) immediately terminate this Agreement on written notice to you. Foam may modify any Fees, in whole or in part, on written notice to you; any modification will take effect at the start of the next billing cycle following such notice.

5. Confidentiality; Data; Feedback

5.1 Confidentiality

"Confidential Information" is any information and materials disclosed or made available by or on behalf of one party (the "Disclosing Party"), or that the other party (the "Receiving Party") obtains in connection with this Agreement, that is designated as confidential or should be reasonably expected to be confidential or proprietary. Without limiting the generality of the foregoing, Confidential Information includes trade secrets and business, technical, and financial information not generally known to the public, such as business plans, strategies, practices, products, and related data.

The Receiving Party (i) will maintain in confidence all Confidential Information, (ii) will not use or grant the use of any Confidential Information except to the extent necessary in connection with its activities as expressly authorized by this Agreement, and (iii) will not disclose any Confidential Information except on a need-to-know basis to its directors, officers, employees, and consultants, to the extent such disclosure is reasonably necessary in connection with its activities as expressly authorized by this Agreement. To the extent that disclosure to any person is authorized by this Agreement, prior to disclosure the Receiving Party will obtain written agreement from such person to hold in confidence and not disclose, use, or grant the use of any Confidential Information except as expressly permitted under this Agreement.

The confidentiality and non-use obligations do not apply to information that (A) is or becomes publicly known through no act or omission of the Receiving Party, (B) was rightfully known by the Receiving Party without confidential or proprietary restriction before receipt from the Disclosing Party, (C) becomes rightfully known to the Receiving Party by a third party without confidential or proprietary restriction from the Disclosing Party, or (D) is independently developed by the Receiving Party without the use of or reference to any Confidential Information.

5.2 Usage Data

Foam may collect, compile, and freely use Usage Data. "Usage Data" means data and information that relates to the provision and/or operation of the Services, including, without limitation, aggregations, analytics, and other statistical or performance information related to the provision and/or operation of the Services.

5.3 Feedback

Foam may freely use, without compensation or other consideration owed to you, all suggestions, comments, user input, and other feedback with respect to the Services and/or Foam that is provided by or on behalf of you or any User.

6. Proprietary Rights

6.1 Ownership — You

As between the parties and subject to the express grants within this Agreement, you own all rights (including intellectual property rights), title, and interest in and to (A) the Customer Materials and (B) any software code and other technology identified as "Customer-Owned Items". Foam hereby assigns to you, for no further consideration, Foam's rights (including intellectual property rights), title, and interest in and to the Customer-Owned Items.

6.2 Ownership — Foam

As between the parties and subject to the express grants within this Agreement, Foam owns and will continue to own all rights (including intellectual property rights), title, and interest in and to (A) the Services, (B) Usage Data, and (C) except for Customer-Owned Items, all other components of the Services, including, without limitation, any derivative work, enhancement, update, customization, modification, adaptation, alteration, upgrade, new feature, or other improvement thereof or thereto. Except as expressly set forth in this Agreement, no express or implied license or right of any kind is granted to you regarding the foregoing, including, without limitation, any right to obtain possession of any source code, data, or other technical material related to the foregoing.

6.3 License to Customer Technology and Customer Data

During the Term, you hereby grant to Foam, for no further consideration, a non-exclusive, worldwide, royalty-free right and license to (A) internally access and use the Customer Technology to provide the Services and (B) internally access, use, copy, modify, display, create derivative works of, and otherwise process and exploit the Customer Data to (i) provide, develop, and/or improve the Services and other Foam products and/or services, (ii) derive and/or generate Output and Usage Data, and (iii) as otherwise permitted by Section 10 below (the "Permitted Purpose").

6.4 License to Customer-Owned Items

You hereby grant to Foam, for no further consideration, a non-exclusive, perpetual, irrevocable, worldwide, royalty-free right and license to internally use, copy, modify, display, create derivative works of, and otherwise process and exploit the Customer-Owned Items for the Permitted Purpose.

6.5 Restrictions

Notwithstanding the foregoing licenses or any terms to the contrary in this Agreement, Foam agrees that it will not, and will not permit any Third-Party Providers (as defined below) to, train or fine-tune any AI Tools on Customer Technology, Customer Data, Customer-Owned Items, or Perpetually-Licensed Items.

7. Representations and Warranties

Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full power and authority to enter into and perform its obligations under this Agreement, (c) the person entering into this Agreement on its behalf has been duly authorized and empowered to do so, and (d) this Agreement is valid, binding, and enforceable against it in accordance with its terms.

Further, you represent and warrant that (i) you possess all necessary rights and consents to grant Foam the rights set forth in this Agreement with respect to Customer Data, (ii) you have collected Customer Data in accordance with all applicable laws, rules, and regulations, (iii) neither Customer Data, nor Foam's use of Customer Data in accordance with this Agreement, will (A) infringe, misappropriate, or otherwise violate any rights of any third party or (B) violate applicable laws, rules, or regulations, and (iv) you will use the Services in accordance with all applicable laws, rules, and regulations.

8. Indemnification

You agree to defend, indemnify, and hold harmless Foam and its affiliates, officers, and employees from any claim or demand arising out of your use of the Service, your violation of these Terms, or your submission of Customer Data.

9. Disclaimers

9.1 General Disclaimers

THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. FOAM DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL OPERATE UNINTERRUPTED, BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.

10. Use of Artificial Intelligence

10.1 Use of AI Tools

Foam uses AI Tools in connection with the Services, including, without limitation, in connection with deriving and/or generating Output. Foam may use AI Tools made available by third-party providers (such AI Tools, "Third-Party AI Tools," and such providers, "Third-Party Providers"), and Foam's use of AI Tools may involve access to Customer Data by Third-Party Providers pursuant to agreements between Foam and such Third-Party Providers, rather than this Agreement. You consent and authorize Foam to share Customer Data with Third-Party AI Tools to the extent required to provide the Services and derive and/or generate Output. You acknowledge and agree that (A) Third-Party AI Tools are not under the control of Foam and do not form part of the Services (as such term is used herein) and (B) Foam makes no representations or warranties with respect to such Third-Party AI Tools.

10.2 Additional Disclaimers Regarding Resultant Information

Without limiting the disclaimers in Section 9.1, Foam makes no, and specifically disclaims any and all, representations or warranties concerning the accuracy, performance, quality, reliability, suitability, or completeness of any Output, Customer-Owned Items, and any other information or results obtained or derived through the use of the Services (collectively, "Resultant Information"), or that any Resultant Information will be non-infringing or otherwise compliant with law or meet your expectations. You acknowledge and agree that the Resultant Information is at least partially dependent on AI Tools (including, without limitation, Third-Party AI Tools), the use of which may result in such Resultant Information being inaccurate, unreliable, inappropriate, infringing, incomplete, or otherwise unsuitable or meeting your expectations. ALL RESULTANT INFORMATION IS PROVIDED "AS IS," YOU USE ALL RESULTANT INFORMATION AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR VETTING, EVALUATING, AND USING ALL RESULTANT INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY USE OR MODIFICATION OF CUSTOMER MATERIALS AND OTHER CUSTOMER PRODUCTS AND/OR SERVICES IN CONNECTION WITH YOUR EVALUATION AND/OR USE OF SUCH RESULTANT INFORMATION.

11. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FOAM BE LIABLE IN CONNECTION WITH THE RELATIONSHIP BETWEEN THE PARTIES (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH THE SERVICES, THIS AGREEMENT, OR ANY OTHER AGREEMENT ENTERED INTO IN CONNECTION HEREWITH), WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY (A) SPECIAL, INDIRECT, EXPECTATION, RELIANCE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR REPUTATIONAL HARM OR DAMAGE, OR (B) AMOUNTS (INCLUDING, WITHOUT LIMITATION, AMOUNTS INCURRED IN CONNECTION WITH DISCHARGING FOAM'S INDEMNIFICATION OBLIGATIONS) THAT, IN THE AGGREGATE, EXCEED THE AMOUNTS PAID BY YOU TO FOAM IN THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE FIRST LIABILITY HEREUNDER. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 11 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

12. Term and Termination

12.1 Term

This Agreement begins on the date you first accept these Terms or first access or use the Services (the "Effective Date") and continues until terminated as set forth herein (the "Term"). If you have subscribed to the Services on a recurring basis, your subscription will automatically renew at the end of each billing cycle unless canceled in accordance with Section 12.2.

12.2 Termination by You

You may terminate this Agreement at any time by canceling your subscription and ceasing all use of the Services. Cancellation will take effect at the end of the then-current billing cycle, and you will remain responsible for all Fees accrued through the effective date of termination.

12.3 Termination by Foam

Foam may terminate this Agreement or suspend your access to the Services at any time, with or without cause, on written notice (including by email) to you. Without limiting the foregoing, Foam may immediately suspend or terminate this Agreement on immediate written notice to you if you are, or Foam reasonably believes you are, in breach of Section 3. Either party may also terminate this Agreement for material breach by the other party that remains uncured within 30 days after such party's receipt of written notice of the breach.

12.4 Effect of Termination

On termination or expiration of this Agreement, (i) all rights granted to you hereunder will immediately terminate and Foam may cease providing the Services, (ii) you will pay to Foam all Fees owed as of the date of termination or expiration, (iii) the Receiving Party will use commercially reasonable efforts to destroy all Confidential Information disclosed hereunder in the Receiving Party's possession or control (provided that the Receiving Party may retain electronically-archived copies of Confidential Information, subject to the terms and conditions of this Agreement), and (iv) all defined terms and Sections 1, 3, 4, 5, 6.1, 6.2, 6.3, 6.4, 6.5, 8, 9, 10, 11, 13.3, and 14 will survive termination or expiration of this Agreement.

13. Modifications

13.1 Modifications to Terms

Foam may modify these Terms from time to time in its sole discretion. If Foam makes a material change, Foam will provide reasonable notice, which may include posting the updated Terms on its website or in the Platform and updating the "Last Updated" date, or by email. The updated Terms will take effect on the date specified in the notice, and your continued access to or use of the Services after the effective date of the updated Terms constitutes your acceptance of them. If you do not agree to the updated Terms, you must stop accessing and using the Services.

13.2 Modifications to the Services

Foam may modify, update, or discontinue the Services (or any portion thereof) at any time in its sole discretion, with or without notice.

13.3 Governing Law; Dispute Resolution

This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws principles, and you submit to the exclusive jurisdiction of the federal and state courts in San Francisco, California for any disputes that you raise with respect to this Agreement.

14. General

14.1 Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and there are no agreements or understandings between the parties, express or implied, except as are expressly set forth in this Agreement.

14.2 Audits

Foam may, by itself or through an independent third party, audit your use of the Services to verify (i) Fees payable and (ii) that you are otherwise compliant with the terms and conditions of this Agreement. You agree to (A) maintain complete and accurate books, logs, and other records with respect to your use of the Services and (B) provide reasonable access to Customer Technology and such books, logs, and other records for purposes of conducting these audits.

14.3 Publicity

You consent to Foam's use of your name and logo on Foam's website and promotional and marketing-related materials to identify you as a customer of Foam.

14.4 Miscellaneous

Except as set forth in Section 13.1, this Agreement may not be modified or amended except by a writing signed by both parties. If any provision of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement will remain valid and enforceable as though such void or unenforceable provision were absent on the date of its execution. The relationship between the parties is that of independent contractors, and neither party has authority to contract for or bind the other party in any manner whatsoever. You may not assign, transfer, or delegate this Agreement, nor any right or duty under this Agreement, by merger, acquisition, operation of law, or otherwise, without Foam's prior written consent, and any attempted assignment, transfer, or delegation without such consent will be void and without effect. This Agreement (including, without limitation, the licenses granted to Foam hereunder) is freely assignable and transferable by Foam. Electronic notice (including email and posting in the Platform) will satisfy any requirements that notice hereunder be in writing. Written notice is effective on the day of receipt. Foam is excused from performance of this Agreement and will not be liable for any delay in whole or in part caused by any event outside of its control.

14.5 Contact

If you have questions about these Terms, you may contact Foam at: support@foam.ai.