DEFANG SOFTWARE LABS INC TERMS OF SERVICE

Updated Oct 31, 2024

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1. Scope

These Terms of Service (“Terms”) of Defang Software Labs Inc., doing business as Defang, (“Defang”, “we”, “our” or “us”) are a legal agreement that describes your and our rights, obligations and responsibilities regarding your use and access to (a) defang.io, its subdomains and any other website where these Terms are posted or made available to you, (b) our online hosted services, including but not limited to the Defang Portal, the Defang “Playground”, the Defang AI assistant, and the Defang “back-end” and (c) our “Software”, meaning, collectively, our Defang Command Line Interface (CLI), Defang Pulumi Provider, and all integrations, application programming interfaces and tools, samples, and documentation ((a) through (c) are collectively referred to as the “Services”).

2. Read These Terms Carefully

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. BY CREATING A DEFANG ACCOUNT OR BY ACCESSING OR USING ANY SERVICE, WHETHER OR NOT YOU ARE A REGISTERED USER, YOU SIGNIFY THAT: (a) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, (b) YOU HAVE READ, UNDERSTAND AND ACKNOWLEDGE OUR Privacy Policy AVAILABLE AT “Privacy Policy” AND IS INCORPORATED INTO THESE TERMS BY REFERENCE AND (c) YOU HAVE READ, UNDERSTAND AND AGREE TO COMPLY WITH ALL OTHER TERMS INCORPORATED INTO THESE TERMS BY REFERENCE. WE RESERVE ALL RIGHTS NOT EXPRESSLY GRANTED UNDER THESE TERMS.

IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU CANNOT USE YOUR ACCOUNT OR OTHERWISE ACCESS ANY OF THE SERVICES. You should print or otherwise save a copy of these Terms for your records.

THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT IN SECTION 24 AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 25 THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS IN SECTIONS 24 AND 25 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 24, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.

3. Legal Authority

Individual Use

If you are an individual and you access or use our Services only for your own use, then these Terms are an agreement between us and you directly.

Organizations

If you are an individual and you access or use our Services on behalf of a company, organization, principal or other entity, such as your employer (each, together with its affiliates, an “Organization”), then: (a) these Terms are an agreement between us and you and us and that Organization, (b) you represent and warrant that you have the authority to bind that Organization to these Terms (and if you do not have the authority, then you may not access or use our Services), (c) your acceptance of these Terms will bind such Organization to these Terms, (d) your individual right to access and use our Services may be suspended or terminated (and ownership and administration of your Defang Account (defined below) may be transferred) if you cease to be associated with, or cease to use an email address associated with, owned by, or provisioned by, that Organization, (e) we may disclose information regarding you and your use of the Services, including your Content (defined below), to such Organization, or to appropriate individuals associated with that Organization and (f) the terms “you” and “your”, as used in these Terms, refer to both you and that Organization.

If you sign up for our Services using an email address associated with, owned by or provisioned by an Organization, or if an Organization pays fees due in connection with your access to or use of our Services (or reimburses you for payment of such fees), or otherwise, then we may deem you, in our sole discretion, to be accessing and using our Services on behalf of that Organization. You represent and warrant that all information that you provide to us regarding any Organization on whose behalf you use our Services, including information identifying other users associated with such Organization or email domains owned by such Organization, is and at all times will be truthful, accurate and complete, and that you will immediately notify us should any such information change or no longer be truthful, accurate or complete.

If you are an Organization on whose behalf an individual user is accessing or using our Services as described above, then you are responsible for the acts and omissions of all such individual users, and for ensuring that all such individual users comply with these Terms.

4. Our Services

Eligibility

You may use our Services only if you are at least the age required in order to form a legally binding contract with us (and on behalf of your Organization as applicable) in compliance with all applicable local, provincial, state, national and international laws, rules and regulations (collectively, “Applicable Laws”). Please check your local law for the age of digital consent that applies to you. You represent and warrant that: (a) you meet the applicable age requirements, (b) are competent to agree to these Terms and (c) you are not barred from accessing or using the Services under Applicable Laws.

If you are unable to form a binding contract with us under Applicable Law, then: (i) you represent and warrant that you have permission from your parent(s) or legal guardian(s) to use our Services, (ii) that your parent or legal guardian is agreeing to these Terms concurrently and (iii) you are not barred from accessing or using the Services under Applicable Laws. If you are a parent or legal guardian of a user of our Services who is unable to form a binding contract under applicable law, you are agreeing to these Terms and you are responsible for such user’s activity on our Services. Our Services are not available to any users who were previously removed from the Services, unless our duly authorized representative agrees otherwise in writing.

Your Account

In order to use the Services, you must create an account (“Account”) with us. We may maintain different types of Accounts for different types of users. You acknowledge and agree that you do not own your Account.

Your Account will be linked with online accounts you have with third party platforms, such as Amazon Web Services and GitHub and other platforms that allow software developers to create, store, manage and share their code, (“Third Party Platforms”), either by (a) providing your Third-Party Platform login credentials through the Services, or (b) allowing us to access your Third Party Platform, as is permitted under the terms and conditions that govern your use of that Third Party Platform. You represent and warrant that you are entitled to disclose your Third Party Platform login credentials to us and/or grant us access to your Third Party Platform, without breach by you of any of the terms and conditions that govern your use of that Third Party Platform, and without obligating us to pay any fees or making us subject to any usage limitations imposed by the provider of that Third Party Platform. By granting us access to your Third Party Platforms, you understand that (i) we may access, make available, and store (if applicable) any content that you have provided to and stored in those Third Party Platforms (“Content”) so that it is available on and through the Services via your Account, and (ii) we may submit to and receive from your Third Party Platform additional information to the extent you are notified when you link your account with that Third Party Platform. We do not review any Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and we are not responsible for any Content.

You may not access or use another user’s Account without that user’s permission. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password(s) strong and secure. You should notify us immediately of any breach of security or unauthorized use of your Account. Any individual with administrator-level access to your Account can modify your Account settings, access and billing information. We will not be liable for any losses caused by any unauthorized use of your Account, or for any changes to your Account, including your ability to access your Account or your Contributions (defined below), made by any individual with administrator-level access to your Account.

You may control certain aspects of your Account profile and how you interact with our Services by changing the settings in your Account Settings page. If you provide us with your email address, we may use the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other marketing or advertising messages, such as changes to features of our Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by logging into the Defang Portal with the email address associated with your Account, or by clicking the unsubscribe link within each marketing or advertising message. Opting out will not prevent you from receiving Services-related notices.

Deleting Your Account and Contributions

You can delete your Account at any time via the Defang Portal. Deleting your Account will remove your access to our Software and our Services, including the Defang Portal and the Defang “Playground”. It can take up to 30 days for our systems to complete this process. Deleting your Account will delete all versions of your Contributions stored on our servers, but will not delete any of your Contributions stored on your local drive(s) or on any Third Party Platforms, including AWS or GitHub. Further, deletion of your Account will not include the deletion of any Input or Output incorporated into the Defang AI Assistant (see the Defang AI Terms for more details). We are not responsible or liable for the removal or deletion of any of your Contributions, or any failure to remove or delete them.

Access to Your Account and Contributions

You acknowledge and agree that we may access, use, preserve and/or disclose your Account or your Contributions (defined below) if we are legally required to do so or if we have a good faith belief that such access, use, disclosure or preservation is reasonably necessary to: (a) comply with legal process or request, (b) enforce these Terms, including investigation of any potential violation thereof, (c) detect, prevent or otherwise address security, fraud or technical issues or (d) protect the rights, property or safety of Defang, its users or the public as required or permitted by Applicable Laws.

Your Conduct

You agree that you will NOT use the Services to:

1. upload, download, post, email, transmit, store or otherwise make available any Contributions (defined below) that are unlawful, harassing, threatening, harmful, defamatory, abusive, obscene, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;

2. stalk, harass, threaten or harm another person;

3. impersonate or misrepresent yourself as another person (including a celebrity), entity, another Defang subscriber or a Defang employee, or otherwise misrepresent your affiliation with a person or entity. We reserve the right to reject or block any user name that could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person’s name or identity;

4. engage in any activity that infringes the intellectual property rights of another individual or entity;

5. post, send, transmit or otherwise make available any unsolicited or unauthorized messages, advertising, promotional materials, junk mail, spam or chain letters;

6. forge any TCP-IP packet header or any part of the header information in an email or a posting, or otherwise putting information in a header designed to mislead recipients as to the origin of any Contributions transmitted through the Services (known as “spoofing”);

7. upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Services (or any part thereof) or any other computer software or hardware;

8. interfere with or disrupt the Services (including accessing the Services through any automated means, like scripts or web crawlers), or any servers or networks connected to the Services, or any policies, requirements or regulations of networks connected to the Services (including any unauthorized access to, use or monitoring of data or traffic thereon);

9. plan or engage in any illegal activity;

10. engage in or facilitate the mining, collection or storage of cryptocurrency, digital tokens or other blockchain-based assets (“Tokens”), including the deployment of applications, software or hardware to mine or otherwise collect or store Tokens, or the use of the Services or Software in any manner that contributes to mining operations; or

11. gather and store personal information on any other users of the Services to be used in connection with any of the foregoing prohibited activities.

Services Management

We reserve the right, but have no obligation, to: (a) monitor the Services for violations of these Terms, (b) take appropriate legal action against anyone who, in our sole discretion, violates the law or these terms, including without limitation and, reporting such user to law enforcement authorities, (c) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof, (d) in our sole discretion and without limitation, notice or liability, remove from the Services or otherwise disable all files and content that are excessive in size or in any way would be burdensome to our systems, and (e) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.

Changing the Services

We reserve the right to modify, suspend or stop the Services (or any part thereof), either temporarily or permanently, at any time, with or without prior notice to you. Without limiting the foregoing, we may provide notice of any such changes to the Services by posting them on our website and/or via the Services, or by email to you. You agree that we are not liable to you or any third party for any modification or cessation of the Services. You acknowledge that we have no express or implied obligation to provide, or continue to provide, the Services, or any part thereof, now or in the future; and in addition, we may at any time, upon prior notice as required by applicable law, institute charges or fees for the Services or change such charges or fees.

No Resale of Services

You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Services (or any part thereof) for any purpose.

Beta Services

Certain components or features of the Services, or support for specific cloud providers of the Services, may be designated as “Beta” or “Preview” or something similar (“Beta Services”). Beta Services are not permitted for use in production environments or with production data. They are provided “AS IS” and may be subject to bugs, errors or other limitations. Defang expressly disclaims any warranty, whether express or implied, regarding the stability, reliability, accuracy or performance of the Beta Services. You assume all risks and liabilities associated with the use of all Beta Services, including any adverse effects on your software, systems, operations or data. Defang will not be liable for any harm or damage arising out of or in connection with your use of Beta Services, and you hereby waive any and all claims against Defang related to such use. Your reliance on the functionality or performance of Beta Services is at your sole risk and discretion. The provisions of this paragraph are in addition to and not in lieu of the Disclaimer of Warranties provisions in Section 17 and the Limitation on Liability provisions in Section 18.

5. Charges

As at the date of these Terms, we do not charge users for access to or use of our Services. In the future, we may offer plans that you may sign up for that allow you to use certain aspects of our Services (including new services or features) for a fee. In that event, we will update these Terms to provide you with details on the applicable pricing and payment terms, which may include one or more subscription plans.

6. Your Contributions

Developer License from Defang

Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable license to use our Services and Software and related tools and documentation in order to develop, deploy, test, debug and support your applications or extensions and all related information, data and other content (collectively, your “Contributions”).

Your Ownership of Your Contributions

As between us and you, you (or your licensors) will own any and all Contributions, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from you (or on your behalf) by or through our Services. If you are an individual using our Services on behalf of an Organization, we may assume, in our sole discretion, that all of your Contributions belong to that Organization. Notwithstanding the foregoing, you acknowledge and agree that we may retain, take possession of, delete or deny you access to your Contributions if we believe, in our sole discretion, that some or all of your Contributions, or your use of our Services, violates these Terms.

If you are an individual using the Services on behalf of an Organization and are collaborating with other employees or other individuals who have access to your Contributions under your Account, or if you share your Contributions with other individuals within or outside of that Organization, then your Contributions that you make available to such other individuals (as well as other information, including the names and contact information of other individuals who have access to your Contributions within our Services) will be visible, accessible and, depending on their designated level of access, editable by such individuals.

In connection with your Contributions, you represent and warrant that: (a) you have all necessary rights, licenses and consents to provide, receive, access and/or use your Contributions and any other content you provide, receive, access and/or use through or in connection with our Services and (b) your Contributions and our use thereof as contemplated by these Terms and our Services will not violate any law or infringe any rights of any third party, including any intellectual property rights and privacy rights.

License to Use Your Contributions

You (on behalf of yourself and your Organization, if applicable, and your other licensors) hereby grant, and you represent and warrant that you have all rights necessary to grant, to us a non-exclusive, worldwide, sublicensable, transferable, perpetual, irrevocable and royalty-free license, under all of your intellectual property rights: (a) to use, reproduce, publicly perform, publicly display, distribute and modify (solely to ensure compatibility with our Services) your Contributions, as well as to use your and your Contributions’ names and logos for our business purposes related to your Contributions, including for purposes of marketing, demonstrating and answering inquiries about your Contributions, (b) to link to and direct audiences to your Contributions from our Services and (c) for any other purpose consistent with our Privacy Policy.

Responsibility for Your Contributions

You are solely responsible for your Contributions and the consequences of posting it, publishing it, sharing it or otherwise making it available on our Services, and you will ensure that your Contributions comply with all Applicable Laws, including applicable privacy, data security, advertising and marketing laws and regulations. We disclaim all responsibility and liability related to your Contributions. Any terms and conditions governing your Contributions must comply with Applicable Laws and accurately and plainly describe your (and our) collection, use, storage and sharing of such users’ personal and confidential data in connection with your Contributions and our Services.

7. Usage Data

We may collect and analyze data and other information regarding your use of the Services, including access, usage patterns and performance (collectively, “Usage Data”). We are free at any time (including after termination of these Terms) to use such data and information for our business purposes, including but not limited to analytics, quality assurance, product and service development and improvement and churn rate and service level analysis. For clarity, Usage Data does not include your Contributions.

8. Feedback

Your Feedback

As part of using the Services, you may choose, or we may invite you to submit comments, feedback or ideas about our Services (“Feedback”). Your Feedback does not form part of your Contributions. You agree that we own all rights to any Feedback provided by you and we are free to use your Feedback for any purpose without acknowledgment or compensation to you and to disclose Feedback on a non-confidential basis or otherwise to anyone. You acknowledge that, by accepting your submission of Feedback, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees or obtained from sources other than you. To the extent permissible by Applicable Laws, you hereby unconditionally and irrevocably waive any and all moral rights that you may have with respect to any Feedback.

9. Defang AI Assistant

We may make available to you features or functionality of the Services that utilize generative artificial intelligence models (“Defang AI Assistant”). Your use of Defang AI Assistant is subject to these Terms and our Defang AI Terms, as updated from time to time, which are available at https://defang.io/policies/ai-terms and are incorporated into these Terms by reference.

10. Privacy Policy

By using the Services, you consent and agree that we may collect, use, store and disclose your personal information and aggregated and/or anonymized data in accordance with our Privacy Policy, and you acknowledge that you may have your personal information collected in, used in, transferred to and processed in Canada and the United States.

If your use of the Services requires us to process any personal data or personal information within your Content, as these terms are defined in and in accordance with applicable privacy laws or regulations, we will do so at all times in accordance with our Privacy Policy and any applicable Data Processing Addendum (“DPA”). You may access and sign our DPA at https://defang.io/policies/data-processing-addendum. Once executed, the DPA will be incorporated into these Terms by reference. If there is any conflict between the DPA and any other aspect of these Terms, then the DPA will govern to the extent of that conflict.

11. Trademark Information

“Defang”, “Cloud, Simplified” and other Defang trademarks, service marks, graphics and logos used in connection with the Services are trademarks or registered trademarks of Defang Software Labs Inc. in Canada, the United States and/or other countries. Other trademarks, service marks, graphics and logos used in connection with the Services may be the trademarks of their respective owners. You are granted no right or license in any of those trademarks, and you agree that you will not remove, obscure or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Services.

12. Defang Intellectual Property Matters

Defang’s Intellectual Property

You acknowledge and agree that our Services and all materials and content displayed or made available on our Services (including the Defang Portal, the Defang “Playground”, the Defang AI assistant, and the Defang “back-end”), and all software (including the Defang CLI and the Defang Pulumi Provider), algorithms, code, technology, and intellectual property underlying and included in or with our Services, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”), are our (or our licensors’ as applicable) sole and exclusive property. You further agree that our Intellectual Property contains proprietary and confidential information that is protected by applicable intellectual property and other laws throughout the world.

Except as explicitly provided in these Terms, nothing in these Terms will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from (unless expressly permitted or required by law) any of our Intellectual Property.

Software

With respect to any computer software (“Software”) forming part of the Services, if such Software is made available subject to a separate end user license agreement (“EULA”), then the terms of that EULA will govern your use of that Software. If such Software is not accompanied by a EULA, then Defang grants you a personal, non-exclusive, non-transferable, limited license to use that Software as a part of the Services and in accordance with these Terms; provided that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Software. All Software and any related documentation are provided “AS IS” without any representation, warranty or condition, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement. You accept any and all risk arising out of your use or the performance of any Software.

Open Source Software

Portions of the Software include and/or utilize open source software components (“Open Source Components”). To the extent that the Software contains or is derived from Open Source Components, Defang grants you a license under the terms of the open source software license applicable to those Open Source Components. The terms of the open source software license will apply to the Open Source Components in lieu of the terms provided in these Terms of Service, but only with respect to those Open Source Components. A list of the Open Source Components and the applicable open source licenses can be found https://defang.io/policies/open-source.

By using the Software, you agree to comply with the terms and conditions of the applicable open source software licenses. If there is any conflict between the terms of the open source software licenses and these Terms, then the terms of the open source software licenses will prevail, but solely with respect to the related Open Source Components.

Except to the extent expressly required by the applicable open source licenses, all Open Source Components and any related documentation are provided “AS IS” without any representation, warranty or condition, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement. You accept any and all risk arising out of your use or the performance of any Open Source Components.

13. Security

Account Access

We have implemented measures designed to secure your Account information in our possession or under our control from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures. You understand that internet technologies have the inherent potential for disclosure.

Storage and Local Access

Your Contributions may be stored on our servers. For example, when you deploy your code using the Defang CLI and our back-end services, a copy of your code is stored on our servers. We use reasonable measures designed to help protect the security and integrity of customer data against unauthorized access, use, alteration or destruction.

Alternatively, or in addition, your Contributions may be stored on one or more Third Party Platform(s) linked to your Account, such as Amazon Web Services or GitHub, and not on our servers. Accordingly, you should review the security measures taken by those Third Party Platforms to determine the risks to your Contributions. Because we have no control over those sites, you acknowledge and agree that we are not responsible for the availability of those sites, and do not endorse or warrant the security of those sites, and we will in no way be liable or responsible for any security breach at any of those sites.

If you store your Contributions locally on your computer or other device, then you acknowledge and consent your use of the Services may necessitate our Software accessing those Contributions and any related data while they are stored locally on your computer. You hereby grant Defang permission to access your local storage as required to facilitate the provision and optimization of the Services, including the retrieval, use and, where necessary, modification of locally stored Contributions and related data.

14. Term and Termination

Term

These Terms remain in effect while you are using the Services.

Termination by You

You may terminate your Account and/or stop using our Services at any time.

Termination by Us

We may at any time, for any reason or no reason and without prior notice or liability, immediately terminate or suspend all or a portion of your Account and/or your access to the Services (including blocking certain IP addresses). Our reasons for termination or suspension may include, without limitation: (a) your breach or other violation of these Terms or any other policies or guidelines that are referenced in these Terms (including our Privacy Policy) and/or posted on the Service, (b) a request by you to cancel or delete your Account, (c) discontinuance or material modification to the Services or any part thereof, (d) a request and/or order from law enforcement, a judicial body or other government agency, (e) where provision of the Services to you is or may become unlawful, (f) unexpected technical or security issues or problems or (g) your participation in fraudulent or illegal activity. Any such termination or suspension will be made by us in our sole discretion, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your Account or access to the Services.

Effect of Termination

Upon termination of your Account, you lose all access to the Services, including, but not limited to, your Account and your Feeback. To the extent you maintain an account with the Third Party Platform(s) where your Contributions are stored, you will continue to have access to them.

15. Links and Third Party Materials

Some Third Party Platforms may include materials from third parties or hyperlinks to other web sites, resources or content. Because we have no control over those sites or materials, you acknowledge and agree that we are not responsible for the availability of those sites or resources, and do not endorse or warrant the accuracy of any of those sites or resources, and will in no way be liable or responsible for any advertising, products or materials on or available from those sites or resources. You further acknowledge and agree that we are not responsible or liable for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any advertising, products or materials on or available from those other sites or resources.

16. Confidentiality

From time to time, either party to these Terms (the “Disclosing Party”) may disclose or make available to the other (the “Receiving Party”) non-public, proprietary or confidential information of the Disclosing Party (“Confidential Information”). Confidential Information includes any information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology and marketing information. Confidential Information does not include Feedback or any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section, (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information, (c) was in the Receiving Party's possession prior to the Disclosing Party's disclosure thereof or (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information.

Protection and Use of Confidential Information

The Receiving Party will: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially-reasonable degree of care, (b) only use the Disclosing Party’s Confidential Information, and only permit it to be accessed or used, for the purpose of exercising its rights or performing its obligations under these Terms, for the purpose of exploring a business relationship (or changes to the business relationship) between the parties, or for any other purpose consistent with our Privacy Policy and (c) not disclose any of the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s service providers or financial/legal advisors who need to know the Confidential Information and are bound to confidentiality obligations at least as restrictive as those in these Terms.

Compelled Access or Disclosure

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, then, prior to making such disclosure (unless prohibited by law or legal process) it must use commercially-reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.

Injunctive Relief

Each of the parties to these Terms acknowledges that the other party will be irreparably harmed if Confidential Information of the other is distributed in breach of this Section, and that such other party would not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each of the parties agrees that the other party will be entitled to seek injunctive relief against any actual or threatened breaches of this Section by the other party without the necessity of showing actual damages or showing that monetary damages would not afford an adequate remedy.

17. Disclaimer of Warranties

OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICES ARE PROVIDED WITHOUT ANY WARRANTY OR CONDITION, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, WE, OUR AFFILIATES AND OUR LICENSORS DO NOT WARRANT OR PROVIDE ANY CONDITION THAT: (a) ANY CONTENT ON OUR SERVICES IS ACCURATE, RELIABLE OR CORRECT, (b) OUR SERVICES WILL MEET YOUR REQUIREMENTS, (c) OUR SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE, (d) ANY DEFECTS OR ERRORS WILL BE CORRECTED OR (e) OUR SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR RELATING TO ANY LOSS OF DATA THAT RESULTS FROM YOUR USE OF OUR SERVICES OR ANY DOWNLOAD OF CONTENT THROUGH THE USE OF OUR SERVICES.

SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY JURISDICTION. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAWS.

THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS AND/OR YOUR USE OF THE SERVICES.

18. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICES. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR: (a) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (b) ANY PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES, (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (d) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (e) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, (f) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE, (g) YOUR DATA AND/OR (h) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

IN THIS SECTION, REFERENCES TO “WE” OR “OUR” INCLUDE DEFANG AND ITS AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR ITS OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS), AS THE CASE MAY BE.

THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TERMS AND/OR YOUR USE OF THE SERVICES.

19. Indemnity

You agree to defend, indemnify and hold harmless Defang, its affiliates, agents, suppliers and licensors (and our and their employees, contractors, agents, officers and directors) from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including legal fees and expenses) relating to or arising from: (a) your access to or use of our Services, (b) your violation of any aspect of these Terms, including your breach of any of your representations and warranties, (c) your violation of any third-party right, including any right of privacy or intellectual property rights, (d) your violation of any Applicable Law, (e) your Contributions, including without limitation any misleading, false, or inaccurate information in Your Contributions, (f) your willful misconduct or (g) any third party’s access to or use of our Services with your username(s), password(s) or other security code(s).

Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action or proceeding that is subject to this indemnification upon becoming aware of it.

Your obligations under this Section will survive the termination or expiration of these Terms and/or your use of the Services.

20. Export Control

You understand and acknowledge that we or our Services may be subject to export control laws and regulations. You agree to comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither you, nor any person to which you make our Services available or that is acting on your behalf, or, if you are an Organization, any of your subsidiaries, or any of your or their directors, officers or employees, or any person owning 50% or more of your equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity or (b) located within or a resident of, or a segment of the government of, any country or territory for which Canada or the United States maintains trade and economic sanctions or embargoes.

21. EU Digital Services Act Disclosures

We take illegal content and misinformation seriously, as described in our EU Digital Services Act Disclosures, as updated from time to time, which are available at https://defang.io/policies/digital-services-act and are incorporated into these Terms by reference (the “DSA Disclosures”). The DSA Disclosures are directed to residents of the European Union (EU).

22. Notification Procedures and Changes to these Terms

We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as we determine in our sole discretion. We reserve the right to determine the form and means of providing notifications to our users, provided that you may opt out of certain notifications as required under Applicable Laws or as described in these Terms or our Privacy Policy. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.

These Terms apply to and govern your access to and use of our Services effective as of the start of your access to or use of our Services, even if such access or use began before publication of these Terms.

We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. In such cases, we will update the “Last Updated” date at the top of this page. When we change these Terms in a material manner, we will notify you that material changes have been made to these Terms, for example by posting the modified Terms on our website, by displaying a prominent notice within the Services, or through other communications. Your continued use of our Services after any change to these Terms constitutes your acceptance of the new Terms of Service. If you do not agree to any part of these Terms or any future Terms of Service, do not use or access (or continue to use or access) our Services and delete your Account.

23. Governing Law and Exclusive Venue

You agree that: (a) we will be deemed solely domiciled in the Province of British Columbia, Canada, and (b) our Services will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the Province of British Columbia, Canada. These Terms will be governed by the internal substantive laws of the Province of British Columbia and the laws of Canada applicable in that Province, without respect to British Columbia’s conflict of laws principles. You and Defang each expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, and all implementing legislation thereunder.

To the limited extent that these Terms allow you or Defang to initiate litigation in a court instead of arbitration, you and Defang agree to submit to the exclusive personal jurisdiction of the British Columbia courts located in Vancouver, British Columbia, including for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents or other intellectual property or proprietary rights, as set out in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that Vancouver, British Columbia is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below does not apply to you or is found to be unenforceable.

If you are resident in a member state of the European Economic Area or the United Kingdom, then the Arbitration Agreement may not apply to you. In addition, if you are resident in a jurisdiction in which consumer arbitration is prohibited by local law, then the Arbitration Agreement does not apply to you. In any such event, because your contract is between you and Defang, a company incorporated under the laws of British Columbia, we each agree that any Claims (defined below) and any other disputes between us will be exclusively governed by and resolved in accordance with the terms of this Section 23. If you are an individual consumer, then you may be entitled to invoke the mandatory consumer protection laws of your country of residence, and/or to bring legal proceedings in the courts of that country. If Defang needs to enforce its rights against you as an individual consumer in the European Economic Area, the United Kingdom, or a jurisdiction in which consumer arbitration is prohibited by local law, then we will do so only in your country of residence.

24. Arbitration Agreement

READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Application

If you live in Canada, the United States or another jurisdiction that allows you to agree to arbitration, then this Section 24 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity or enforceability thereof, (b) access to or use of our Services, including receipt of any advertising, marketing, or other communications from us, (c) any transactions through, by, or using our Services or (d) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement applies, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms, including after you cease using our Services.

If you are a new user, you can opt-out of this Arbitration Agreement within 30 days of your first use of any of our Services, or the date you create your Account, whichever is earlier, by emailing us notice to that effect at support@defang.io. Any opt out notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third party purporting to act on your behalf will have no effect on your or Defang’s rights. Your email notice must include your first and last name, the email address associated with your Account (if you have one) and an unequivocal statement that you want to opt-out of the Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.

Informal Negotiations

For any Claim, you agree to first contact us at support@defang.io and attempt to resolve the dispute with us informally on a low-cost and mutually beneficial basis. As part of your message, you must include (a) your name, telephone number, mailing address and the e‐mail address associated with your Account (if you have one), (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any, and (c) a description of our Claim. If we have a Claim against you, we will send an email with a description of our Claim to your email address or regular address associated with your Account. As part of this informal dispute resolution process, either you or Defang has the option to ask the other to meet and confer telephonically. If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.

Binding Arbitration

In the unlikely event that we have not been able to resolve a Claim after 60 days, we each agree to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. If there is any conflict between the Rules and this Arbitration Agreement, then the Arbitration Agreement will control to the extent of such conflict. The arbitration will be conducted in Vancouver, Canada, unless you and we agree otherwise. If you are using our Services for commercial purposes, then each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Services for non-commercial purposes: (a) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS, (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses and (c) you may bring an individual action in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, provincial, state or local court or agency, has exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defense to arbitration, including waiver, delay, laches, unconscionability or estoppel.

Exceptions to Informal Negotiation and Arbitration

NOTHING IN THIS SECTION WILL BE DEEMED AS PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE AND NON-REPRESENTATIVE) BASIS.

Process if Arbitration Agreement Void, Unenforceable or Unlawful

IF A FINAL DECISION, NOT SUBJECT TO ANY FURTHER APPEAL OR RECOURSE, DETERMINES THAT THIS ARBITRATION AGREEMENT IS VOID, UNENFORCEABLE OR UNLAWFUL, IN WHOLE OR IN PART, THEN THE VOID, UNENFORCEABLE OR UNLAWFUL PROVISION, IN WHOLE OR IN PART, WILL BE SEVERED. SEVERANCE OF THE VOID, UNENFORCEABLE OR UNLAWFUL PROVISION, IN WHOLE OR IN PART, WILL HAVE NO IMPACT ON THE REMAINING PROVISIONS OF THE ARBITRATION AGREEMENT, WHICH WILL REMAIN IN FORCE, OR THE PARTIES’ ABILITY TO COMPEL ARBITRATION OF ANY REMAINING CLAIMS ON AN INDIVIDUAL BASIS PURSUANT TO THE ARBITRATION AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF A FINAL DECISION, NOT SUBJECT TO ANY FURTHER APPEAL OR RECOURSE, DETERMINES THAT THE CLASS ACTION/JURY TRIAL WAIVER IS VOID, UNENFORCEABLE OR UNLAWFUL, IN WHOLE OR IN PART, BECAUSE IT WOULD PREVENT YOU FROM SEEKING PUBLIC INJUNCTIVE RELIEF, THEN ANY DISPUTE REGARDING THE ENTITLEMENT TO SUCH RELIEF (AND ONLY THAT RELIEF) MUST BE SEVERED FROM ARBITRATION AND MAY BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION. ALL OTHER CLAIMS FOR RELIEF SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT WILL BE ARBITRATED UNDER ITS TERMS, AND THE PARTIES AGREE THAT LITIGATION OF ANY DISPUTE REGARDING THE ENTITLEMENT TO PUBLIC INJUNCTIVE RELIEF WILL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL CLAIMS IN ARBITRATION.

25. Class Action/Jury Trial Waiver

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND WE AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING.

26. California Residents

The provider of the Services is Defang Software Labs Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

27. General

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void. These Terms and our Privacy Policy constitute the entire agreement between you and Defang and govern your use of the Services. We may assign any or all of our rights under these Terms at any time without notice to you. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. If any part of these Terms is held invalid or unenforceable, then that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement will be unenforceable. The failure of Defang to exercise or enforce any right or provision of these Terms will not constitute a waiver of that right or provision. You agree that these Terms will not be construed against us by virtue of having drafted them. You agree that, except as otherwise expressly provided in these Terms, there are no third-party beneficiaries to this Terms. You agree that, in addition to those provisions of these Terms expressly stated to survive termination, any provision of these Terms or our Privacy Policy that must survive in order to allow us to enforce its meaning will survive the termination of these Terms, provided that any claim or cause of action arising out of or related to these Terms, our Privacy Policy or the Services must be filed within one year after the cause of action arose or it will be forever barred. You hereby irrevocably and unconditionally waive any and all defences you may have based on the electronic form of these Terms and the lack of signing by the parties to execute these Terms.

28. Contact Us

If you have any questions about these Terms, please contact us at support@defang.io.

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