Terms of Service

These Terms of Service (these “Terms”) govern access to and use of the products and services made available by Infisical Inc., a Delaware corporation (“Company”), including Company’s websites, applications, and application programming interfaces. These Terms are a binding agreement between Company and the individual or entity accepting them (“Customer”), and references to “you” or “your” mean Customer. These Terms, together with each Order Form and the policies and documents expressly incorporated by reference, constitute the “Agreement” between Company and Customer.

PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I AGREE” (OR A SIMILAR BUTTON OR CHECKBOX), CREATING AN ACCOUNT, PLACING AN ORDER, OR ACCESSING OR USING THE SERVICES, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY ARE AT LEAST EIGHTEEN (18) YEARS OLD AND HAS THE AUTHORITY TO BIND CUSTOMER. IF CUSTOMER DOES NOT AGREE, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.

IF CUSTOMER PURCHASES A SUBSCRIPTION, THE SUBSCRIPTION WILL AUTOMATICALLY RENEW, AND CUSTOMER’S PAYMENT METHOD WILL BE CHARGED ON A RECURRING BASIS, UNLESS CUSTOMER CANCELS BEFORE THE END OF THE THEN-CURRENT SUBSCRIPTION TERM AS DESCRIBED IN SECTION 8.1 (TERM AND RENEWAL).

If Customer and Company have executed a separate written agreement governing Customer’s use of the Services (including a master services agreement), that agreement, and not these Terms, governs. Capitalized terms have the meanings given in Section 1 (Definitions) or where first defined in these Terms.

1. Definitions

Capitalized terms used in this Agreement have the meaning set forth below or as defined elsewhere in this Agreement.

1.1 “Account” means the account Customer registers to access, use, and administer the Services.

1.2 “Account Data” means Personal Data that relates to Company’s relationship with Customer, including the names and contact information of individuals authorized by Customer to access Customer’s account, support communications, and billing and administrative information relating to Customer. Account Data does not include Customer Data; substantive content that Customer or its Users submit in support communications or administrative fields remains Customer Data.

1.3 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interest.

1.4 “Aggregated and De-identified Data” means data derived from Customer Data or Usage Data that has been aggregated or de-identified such that it does not, and cannot reasonably be used, alone or in combination with other information, to identify Customer or any individual.

1.5 “Company Technology” means the Services, Documentation, and all technology, software, algorithms, and intellectual property owned by or licensed to Company, including any modifications, improvements, or derivative works thereof, excluding Customer Data and Outputs.

1.6 “Customer Data” means any data, content, or materials submitted or made available by, or on behalf of, Customer or its Users to the Services, or otherwise collected by the Services or any connected tools on Customer’s behalf, or generated or issued by the Services for Customer’s use as Outputs (as defined below), as applicable, including any Personal Data contained therein. Customer Data does not include Usage Data, Account Data, or Aggregated and De-identified Data.

1.7 “Documentation” means Company’s then-current technical documentation, help articles, in-product guidance, user guides, and other similar materials that Company makes available to Customer as updated from time to time.

1.8 “Order Form” means an ordering document or online order specifying the Services to be provided, applicable fees, and other commercial terms, executed by both parties or completed through Company’s ordering process.

1.9 “Outputs” means the credentials, keys, certificates, scan results, reports, and other data and materials generated or issued by the Services for Customer’s use. Outputs do not include the Company Technology.

1.10 “Personal Data” means any information that identifies, relates to, describes, or could reasonably be used to identify a natural person, as defined under applicable privacy law.

1.11 “Protected Health Information” means “protected health information” as defined in 45 C.F.R. § 160.103.

1.12 “Services” means Company’s proprietary products and services, including Company’s websites, applications, and application programming interfaces, identified in the applicable Order Form or otherwise made available by Company to Customer under this Agreement, including any updates, upgrades, patches, bug fixes, or new features that Company makes generally available to its customers at no additional charge (“Updates”).

1.13 “Usage Data” means data generated by or collected through Customer’s or its Users’ interaction with the Services, including log data, feature usage statistics, performance metrics, and other operational and technical data relating to the use of the Services. Usage Data may include Personal Data, in which case Company will process it in accordance with applicable law and its applicable privacy notices. Usage Data does not include Customer Data or the content of inputs, files, Outputs, or substantive support communications.

1.14 “Users” means the individuals, and the automated, service, and artificial intelligence agent accounts operated by or for Customer, that Customer authorizes to access, use, or administer the Services, including employees, consultants, contractors, and agents of Customer and its Affiliates (each, a “User”).

2. Services; Access

2.1. Provision of Services; License Grant

Subject to the terms of this Agreement and the applicable Order Form, during the applicable Subscription Term (as defined in Section 8.1) or any period of free or trial access, Company hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services, including any plug-ins, extensions, or components made available as part of the Services and the tools and features provided for configuration, as described in the Documentation, for Customer’s internal business purposes, and, as applicable, to generate, receive, and use Outputs in accordance with this Agreement. Company may provide Updates to the Services at its discretion, and such Updates will be subject to the terms of this Agreement. Company will not materially reduce the core functionality of the Services during a Subscription Term without Customer’s prior written consent. The Services are provided as Company-hosted cloud services; any other deployment model requires an Order Form or separate written agreement expressly providing for it.

2.2. Eligibility; Business Use; Accounts

The Services are intended solely for business use. Customer represents that: (a) Customer is entering into this Agreement for business purposes and not for personal, family, or household purposes; (b) the individual accepting this Agreement is at least eighteen (18) years old; and (c) Customer is not barred from using the Services under applicable law. Customer will provide accurate and complete information when registering an Account and will keep that information current.

2.3. Users

Customer may permit Users to access and use the Services and remains responsible for each User’s compliance with this Agreement as if it were Customer’s own use, for the confidentiality of all login credentials, and for all activities that occur under its Account. Customer will ensure that the number of Users does not exceed any limit specified in the applicable Order Form.

2.4. Subcontractors

Company may use subcontractors to perform its obligations under this Agreement. Company remains responsible for its subcontractors’ performance of Company’s obligations under this Agreement, but is not responsible for failures or unavailability of third-party services or infrastructure to the extent outside Company’s reasonable control, subject to the DPA with respect to Personal Data.

2.5. Beta Features

Company may make beta or pre-release features (each, a “Beta Feature”) available for Customer’s internal evaluation. Beta Features are provided “as is,” are not supported, may be subject to additional limitations, and may be modified or discontinued at any time, and Company has no obligation to make any Beta Feature generally available.

2.6. Support

Company will provide support for the Services as described in the Documentation. Except as expressly set forth in an Order Form, Company does not commit to any service levels, uptime percentages, response times, or service credits under this Agreement.

3. Customer Obligations

3.1. Use Restrictions

Customer will not, and will not permit any third party to: (a) sublicense, sell, resell, rent, lease, transfer, distribute, or otherwise make the Services available to any third party other than Users; (b) modify, copy, or create derivative works based on the Services or Company Technology; (c) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code, object code, or underlying algorithms of the Services; (d) access or use the Services or Outputs to build, train, or improve a product, service, or artificial intelligence or machine learning model that competes with the Services, or to benchmark the Services against a competitive product or service; (e) remove, alter, or obscure any proprietary notices on the Services; (f) use the Services to transmit harmful or malicious code, files, scripts, or agents (“Harmful Code”); (g) interfere with or disrupt the integrity or performance of the Services, or attempt to gain unauthorized access to the Services or their related systems; or (h) use the Services in violation of any applicable law or regulation.

3.2. Customer Responsibilities

Customer is solely responsible for: (a) the accuracy, quality, and legality of Customer Data; (b) the means by which Customer acquired Customer Data; (c) Customer’s use of Outputs, including any decisions made or actions taken based on Outputs; and (d) ensuring that Customer’s use of the Services and Outputs complies with all applicable laws and regulations. Customer will use the Services in compliance with this Agreement and all applicable laws. Customer is responsible for providing any notices and obtaining any consents required by applicable law in connection with its use of any session recording, monitoring, or logging features of the Services.

3.3. Restricted Data

Customer will not submit to the Services any data that is subject to heightened regulatory requirements, including Protected Health Information, payment card data subject to PCI-DSS, data controlled under the International Traffic in Arms Regulations, technical data controlled on the Commerce Control List of the Export Administration Regulations or otherwise requiring an export license (excluding EAR99 items), or data classified under government security programs, or any other Restricted Data identified in the DPA or the Documentation, unless Company has expressly agreed in writing to process such data and the parties have executed any supplemental agreements required by applicable law or regulation.

4. Intellectual Property; Data

4.1. Company IP

As between the parties, Company retains all right, title, and interest in and to the Services, Company Technology, and any modifications, improvements, or derivative works thereof, including all intellectual property rights therein. No rights are granted to Customer except as expressly set forth in this Agreement.

4.2. Customer Data

As between the parties, Customer retains all right, title, and interest in and to Customer Data. Customer grants Company a non-exclusive, worldwide license to use, process, and display Customer Data solely as necessary to provide, operate, secure, support, and maintain the Services, and to create Aggregated and De-identified Data, in accordance with this Agreement and applicable law.

4.3. Feedback

Customer grants Company a perpetual, irrevocable, worldwide, royalty-free license to use any suggestions, ideas, or other feedback relating to the Services (“Feedback”) without restriction or obligation to Customer, provided that any Feedback incorporating Customer’s Confidential Information remains subject to Section 9 (Confidentiality).

4.4. Outputs

As between the parties, Customer owns all right, title, and interest in and to Outputs, subject to Company’s rights in the Company Technology. Company may use Outputs solely as permitted for Customer Data under this Agreement.

4.5. Data

Company will not use Customer Data or Outputs to train, fine-tune, develop, or improve any artificial intelligence or machine learning model, except as expressly authorized in writing by Customer or as Aggregated and De-identified Data in accordance with this Agreement. As between the parties, Company owns all right, title, and interest in and to Aggregated and De-identified Data. Company may use Aggregated and De-identified Data solely to: (a) provide, maintain, and improve the Services; and (b) perform analytics and benchmarking. Company will implement and maintain measures designed to ensure that Aggregated and De-identified Data does not identify Customer or any individual, will not attempt to re-identify Aggregated and De-identified Data and will not sell Aggregated and De-identified Data or make it available to any third party for such third party’s independent use. Company may collect and use Usage Data to operate, secure, support, maintain, analyze, improve, and develop the Services, and to comply with applicable law. As between the parties, Company owns all right, title, and interest in and to Usage Data.

5. Data Security

Company will maintain an information security program that includes commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, disclosure, alteration, or destruction. Company will review and update its safeguards as appropriate, consistent with generally accepted industry standards for similarly situated providers. Company’s collection and use of Personal Data in connection with the Services is described in Company’s Privacy Policy available at https://infisical.com/privacy. To the extent Company processes Personal Data on Customer’s behalf in connection with the Services, the terms of Company’s Data Processing Agreement available at https://infisical.com/terms/dpa (the “DPA”) apply and are incorporated into this Agreement by reference.

6. Third-Party Services; Open-Source Software

The Services may permit Customer or its Users to connect to, integrate with, or use products, services, or content provided by third parties that Customer or its Users select, authorize, access or enable, including any third-party provider accessed using Customer’s own account or API keys (each, a “Third-Party Service”). A Third-Party Service is not part of the Services, and Customer’s use of any Third-Party Service is subject to that third party’s terms of service and privacy policies. Company is not liable for failures, outages, changes in capabilities, or acts or omissions attributable to any Third-Party Service, and Company makes no warranty with respect to any Third-Party Service. The Services may also rely on third-party hosting or infrastructure providers, and, except as set forth in Section 2.4 (Subcontractors), Company is not liable for the acts, omissions, availability, or performance of any such provider. The Services may incorporate open-source software components that are subject to their own applicable license terms, which govern Customer’s use of those components and, in the event of a conflict, control over this Agreement solely with respect to those components. Company provides such components on an “as is” basis and makes no warranties with respect to them except as expressly set forth in this Agreement.

7. Fees; Payment

7.1. Fees

Customer will pay all fees specified in the applicable Order Form or as otherwise presented to Customer at the time of purchase (“Fees”). Except as expressly set forth in this Agreement, all Fees are non-refundable and non-cancellable. Customer authorizes Company and its third-party payment processors to charge Customer’s designated payment method for all Fees when due, including upon each renewal. Unless otherwise specified in the applicable Order Form, all Fees will be in USD and, where Company invoices Customer, will be payable on net thirty (30) day terms. Fees may be charged on a per-User subscription basis or on a consumption or usage basis, in each case as set forth in the applicable Order Form. For consumption-based Order Forms, Company will measure usage as described in the Order Form and may true-up usage exceeding the committed amount. Any undisputed amounts not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less. Customer will notify Company in writing of any disputed amounts, with reasonable supporting detail, within thirty (30) days of the applicable invoice or charge date, and will pay all undisputed amounts while the parties resolve the dispute in good faith.

7.2. Taxes

All Fees are exclusive of taxes. Customer is responsible for all applicable taxes (other than taxes based on Company’s net income) arising from or relating to this Agreement. If Company is required to collect or remit any such taxes, they will be invoiced to Customer and paid in accordance with this Section.

7.3. Free Trials; Free Access

Company may offer free trials, free tiers, or promotional access to the Services and may require a payment method at registration. Unless Customer cancels before the end of a free trial, Company may begin charging the applicable Fees at the end of the trial period. Free trials, free tiers, and promotional access are provided “as is” and without warranties, support commitments, or indemnification obligations on Company’s part, and may be modified, suspended, or discontinued by Company at any time.

8. Term; Termination

8.1. Term and Renewal

This Agreement commences on the date Customer first accepts it (the “Effective Date”) and continues until all subscriptions and Order Forms have expired or been terminated. Each subscription runs for the initial subscription term selected by Customer at purchase or specified in the applicable Order Form (the “Initial Term”) and will automatically renew for successive periods equal in length to the then-expiring term (each, a “Renewal Term” and, collectively with the Initial Term, the “Subscription Term”). Company will charge Customer’s designated payment method at the then-current Fees upon each renewal, unless: (a) Customer cancels the subscription through its Account settings, or as otherwise described in the Documentation, before the end of the then-current term; or (b) Company elects not to renew by written notice at least thirty (30) days before the end of the then-current term. Cancellation takes effect at the end of the then-current Subscription Term, and Customer retains access to the Services through that date. Company may change the Fees for any Renewal Term by providing notice at least thirty (30) days before the start of that Renewal Term; the new Fees take effect at the start of that Renewal Term, and Customer may cancel the subscription before renewal if Customer does not agree to the change.

8.2. Termination for Cause

Either party may terminate an Order Form or this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice (ten (10) days for Customer’s breach of Section 3.1 (Use Restrictions) or use of the Services in violation of applicable law). For breaches that by their nature cannot be cured, including reverse engineering or use of Outputs to develop a competing product, Company may terminate immediately upon written notice. Either party may also terminate this Agreement immediately upon written notice if the other party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver appointed, or is subject to a bankruptcy or similar proceeding not dismissed within sixty (60) days.

8.3. Termination for Convenience

Customer may cancel any subscription as described in Section 8.1 (Term and Renewal) and may stop using the Services at any time. Company may terminate this Agreement, any Order Form, or any subscription for convenience upon thirty (30) days’ written notice, in which case Company will refund to Customer any prepaid Fees for the unused remainder of the then-current Subscription Term as Customer’s sole and exclusive remedy for such termination. Company may suspend or terminate any free trial, free tier, or promotional access at any time without notice.

8.4. Suspension

Company may suspend access to the Services to the extent Company reasonably determines necessary to address a security risk, unlawful activity, a threat to the integrity or availability of the Services, or a violation of Section 3.1 (Use Restrictions) or any policy identified in the applicable Order Form or Documentation, or to the extent required by a third-party provider used to provide the Services. Company may also suspend access upon ten (10) business days’ written notice for failure to pay undisputed amounts when due. Company will provide prompt notice of any suspension and restore access when the issue is resolved; suspension does not relieve Customer of its payment obligations.

8.5. Effects of Termination; Survival

Upon termination or expiration of this Agreement: (a) all rights granted to Customer cease; (b) Customer will discontinue use of the Services; (c) each party will return or destroy the other party’s Confidential Information in accordance with Section 9 (Confidentiality); and (d) Company will make Customer Data available for export in an industry-standard, machine-readable format for sixty (60) days, after which Company will delete Customer Data, subject to routine backups, legal retention requirements, and the DPA. Sections 4.1 (Company IP), 4.3 (Feedback), 4.4 (Outputs), 4.5 (Data) (with the license in Section 4.2 (Customer Data) surviving solely to the extent necessary for permitted retention, export, security, legal compliance, and deletion), 5 (Data Security) (for so long as Company retains Customer Data), 7 (Fees; Payment) (for outstanding payment obligations), 8.5 (Effects of Termination; Survival), 9 (Confidentiality), 10.3 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13 (Governing Law; Dispute Resolution), 14 (Changes to these Terms), and 15 (Miscellaneous) survive, along with any other provision that by its nature should survive.

9. Confidentiality

“Confidential Information” means all non-public information disclosed by or on behalf of one party or its Affiliates (“Discloser”) to the other party (“Recipient”) that is marked confidential or that a reasonable person would understand to be confidential given the nature of the information or the circumstances of its disclosure, including business plans, technical data, product plans, financial information, and customer lists. Company’s Confidential Information includes the Services, Company Technology, and any non-public information regarding Company’s products, product plans, security practices, and pricing. Recipient will: (a) use Confidential Information only to exercise its rights and perform its obligations under this Agreement; (b) protect it with at least the same care it uses for its own similar information, and no less than reasonable care; and (c) disclose it only to its and its Affiliates’ employees, contractors, officers, agents, directors, and professional advisors who need to know and are bound by confidentiality obligations at least as protective as this Agreement (each, a “Representative”). Recipient is responsible for any breach by its Representatives. Recipient will promptly notify Discloser of any unauthorized use, disclosure, or loss of Confidential Information and reasonably cooperate in Discloser’s investigation. Confidential Information does not include information that: (a) is or becomes public without breach of this Agreement; (b) Recipient rightfully knew, without restriction, before disclosure, as shown by its records or other reasonable evidence; (c) Recipient rightfully obtains from a third party without restriction; (d) Recipient independently develops without reference to Discloser’s Confidential Information, as shown by its records or other reasonable evidence; (e) is approved for release by Discloser in writing; or (f) is Usage Data or Aggregated and De-identified Data. Recipient may disclose Confidential Information if required by law or legal process, provided it gives Discloser prompt notice where legally permitted and, at Discloser’s expense, reasonably cooperates in any effort to limit the disclosure or obtain confidential treatment. Subject to Section 8.5 (Effects of Termination; Survival) and the DPA with respect to Customer Data, upon Discloser’s written request following termination or expiration of this Agreement, Recipient will return or destroy all Confidential Information within thirty (30) days and, at Discloser’s request, certify the return or destruction in writing. Recipient may retain: (a) archival copies for legal and compliance purposes; (b) automatic electronic backups; and (c) copies subject to legal hold or required by applicable law, in each case subject to this Agreement. The obligations set forth in this Section 9 (Confidentiality) will survive the expiration or termination of this Agreement for three (3) years; except that obligations for trade secrets continue for as long as the information remains a trade secret under applicable law.

10. Warranties; Disclaimers

10.1. Authority

Each party represents and warrants that it has the legal power and authority to enter into this Agreement and to grant the rights granted in this Agreement.

10.2. Customer Warranties

Customer warrants that: (a) Customer’s use of the Services will comply with all applicable laws and regulations; (b) Customer Data does not infringe or misappropriate any third party’s intellectual property rights; (c) Customer Data has been collected in accordance with all applicable laws, including applicable data protection laws; and (d) Customer Data does not contain Harmful Code.

10.3. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY OUTPUTS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT: (A) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (B) ANY CERTIFICATE ISSUED THROUGH THE SERVICES WILL BE VALID, TRUSTED, OR TIMELY ISSUED, RENEWED, OR REVOKED; (C) ANY SCANNING FEATURE WILL DETECT ALL SECRETS, CREDENTIALS, OR VULNERABILITIES; (D) SESSION RECORDINGS OR LOGS WILL BE COMPLETE, CONTINUOUS, OR FULLY MASKED; OR (E) USE OF THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS OR ENSURE COMPLIANCE WITH ANY LAW OR STANDARD.

11. Indemnification

11.1. Company Indemnification

Company will defend and indemnify Customer, its Affiliates, and their respective officers, directors, employees, and agents from and against any third-party claim alleging that Customer’s authorized use of the Services (excluding Outputs) in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will pay any damages finally awarded or settlement amounts agreed to by Company. If the Services become, or in Company’s reasonable opinion are likely to become, the subject of an infringement claim, Company may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing; or (c) if neither of the foregoing options is commercially practicable, terminate the affected Order Form and refund to Customer any prepaid Fees for the remainder of the Subscription Term. Company’s indemnification obligations under this Section will not apply to the extent any claim arises from: (i) Customer’s use of the Services or Outputs in a manner not authorized by this Agreement or the Documentation; (ii) Customer’s modification of the Services or Outputs, or their combination with products, services, or content not provided by Company; or (iii) Customer’s continued use of the Services after Company has notified Customer of a potential infringement concern. This Section states Company’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any claim of intellectual property infringement. Company’s indemnification obligations under this Section do not apply to free trials, free tiers, or promotional access (Section 7.3).

11.2. Customer Indemnification

Customer will defend and indemnify Company, its Affiliates, and their respective officers, directors, employees, and agents from and against any third-party claim arising out of or relating to: (a) Customer Data; (b) Customer’s breach of Section 3 (Customer Obligations); or (c) Customer’s use of the Services or Outputs in violation of applicable law. Customer will pay any damages finally awarded or settlement amounts agreed to by Customer.

11.3. Indemnification Procedures

The indemnifying party’s obligations are conditioned on the indemnified party: (a) providing prompt written notice of the claim; (b) granting sole control of the defense and settlement to the indemnifying party; and (c) providing reasonable cooperation at the indemnifying party’s expense. Failure to provide prompt notice relieves the indemnifying party only to the extent it is materially prejudiced. The indemnifying party will not settle any claim in a manner that imposes obligations on, requires any admission of fault by, or fails to fully release the indemnified party without the indemnified party’s prior written consent.

12. Limitation of Liability

12.1. Consequential Damages Exclusion

EXCEPT FOR: (A) EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION); (C) CUSTOMER’S BREACH OF SECTION 3.1 (USE RESTRICTIONS); OR (D) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2. General Cap

EXCEPT WITH RESPECT TO THE EXCLUDED CLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) ONE HUNDRED U.S. DOLLARS (US$100).

12.3. Basis of the Bargain

The limitations of liability set forth in this Section reflect the allocation of risk between the parties and are an essential element of the basis of the bargain between the parties.

12.4. Claims Period

Except for Customer’s payment obligations, to the maximum extent permitted by applicable law, any claim arising out of or relating to this Agreement must be filed within one (1) year after the date on which the claim accrued, and any claim not filed within that period is permanently barred.

13. Governing Law; Dispute Resolution

This Agreement is governed by the laws of the State of California, without regard to its conflict-of-laws principles. Before initiating any formal proceeding, the parties will attempt in good faith to resolve any dispute through negotiation for thirty (30) days after written notice of the dispute. Any dispute not resolved through that process will be finally resolved by binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures before a single arbitrator seated in San Francisco, California, except that: (a) either party may bring an individual claim in small claims court; and (b) either party may seek injunctive or other equitable relief in any court of competent jurisdiction for any breach or threatened breach of Section 3.1 (Use Restrictions), Section 4 (Intellectual Property; Data), or Section 9 (Confidentiality), which the parties agree may cause irreparable harm for which monetary damages are inadequate, without posting bond or proving damages. EACH PARTY WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION AND ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. If the class action waiver is found unenforceable as to a particular claim, that claim (and only that claim) must proceed in court rather than in arbitration.

14. Changes to These Terms

Company may modify these Terms from time to time. If Company makes material changes that adversely affect Customer, Company will provide at least thirty (30) days’ prior notice by email, through the Services, or by posting the updated Terms with a new “Last Updated” date, and the changes will take effect at the start of Customer’s next Renewal Term or, if Customer has no active subscription, thirty (30) days after notice. All other changes take effect when posted. Customer’s continued use of the Services after the effective date constitutes acceptance of the updated Terms; if Customer does not agree to a change, Customer must cancel its subscription and stop using the Services before the change takes effect. Changes do not apply to any dispute between the parties arising before the effective date of the change. Changes to these Terms do not modify an Order Form executed by both parties during its then-current Subscription Term, except as expressly agreed by the parties in writing.

15. Miscellaneous

15.1. Publicity

Company may identify Customer by name and logo as a customer of Company on Company’s website, in customer lists, and in marketing materials, and will promptly cease any such use of Customer’s logo upon Customer’s written request. With Customer’s prior written approval (email sufficient), Company may publish a case study describing Customer’s use of the Services.

15.2. Force Majeure

Neither party will be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, government actions, epidemics, internet or telecommunications failures, or third-party infrastructure failures (“Force Majeure Event”). The affected party will give prompt written notice to the other party and will use commercially reasonable efforts to mitigate.

15.3. Assignment

Customer may not assign this Agreement, in whole or in part, without Company’s prior written consent, and any attempted assignment in violation of this Section is void. Company may assign this Agreement without consent, including to an Affiliate or in connection with a merger, change of control, reorganization, or sale of all or substantially all of its assets. This Agreement binds the parties’ permitted successors and assigns.

15.4. Notices

Company may provide notices to Customer by email to the email address associated with Customer’s Account, through the Services, or by posting to Company’s website, and such notices are deemed given when sent or posted. Customer is responsible for keeping its Account email address current. Customer will provide notices to Company by email to the email address set forth in Section 15.9 (Contact) (other than email returning an automated non-delivery notice), and such notices are deemed given upon receipt. Notices of a legal nature to Company must also be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (return receipt requested) to the mailing address set forth in Section 15.9 (Contact).

15.5. Order of Precedence; Entire Agreement

If there is a conflict between the terms of this Agreement and any other document, the order of precedence is: (a) the applicable Order Form; (b) these Terms; and (c) all other policies, schedules, and guidelines referenced herein, except that the DPA controls over all other documents with respect to the processing of Personal Data, and any business associate agreement between the parties controls with respect to Protected Health Information. For clarity, this Agreement controls ownership of, and the permitted uses of, Aggregated and De-identified Data that no longer constitutes Personal Data. If Customer and Company have executed a separate written agreement governing Customer’s access to and use of the Services, including a master services agreement, that agreement governs and these Terms do not apply to the Services covered by that agreement. This Agreement, together with all Order Forms and any policies and documents expressly incorporated by reference, is the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, and communications, whether oral or written. Any terms in Customer’s purchase order or other ordering document that are in addition to or inconsistent with this Agreement are expressly rejected and will have no force or effect. Any non-disclosure agreement between the parties will continue to govern Confidential Information disclosed before the Effective Date unless the parties expressly agree otherwise in writing; this Agreement governs Confidential Information disclosed on or after the Effective Date.

15.6. General

A party’s failure to enforce any provision of this Agreement is not a waiver of that provision. If any provision is held invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in this Agreement confers any rights or remedies on any person other than the parties and their permitted successors and assigns. The parties are independent contractors, and nothing in this Agreement creates any agency, partnership, joint venture, employment, or fiduciary relationship.

15.7. Government Users; Compliance with Laws

The Services and Documentation are “commercial items,” “commercial computer software,” and “commercial computer software documentation” under 48 C.F.R. §§ 2.101, 12.212, and 227.7202, and any U.S. Government end user acquires only the rights granted to all other customers under this Agreement. Each party will comply with all applicable export, import, sanctions, anti-corruption, and anti-bribery laws. Customer represents that it is not organized under the laws of, headquartered in, or ordinarily resident in any jurisdiction subject to comprehensive U.S. sanctions, and that neither Customer nor any person that owns or controls it is on any U.S. government restricted-party list.

15.8. Electronic Acceptance; Communications

Customer consents to transact electronically and to receive notices, disclosures, and other communications from Company electronically, including by email and through the Services. Acceptance of this Agreement by electronic means, including by clicking to accept, has the same legal effect as an original ink signature under the U.S. ESIGN Act and the Uniform Electronic Transactions Act (UETA).

15.9. Contact

Questions about these Terms, and notices to Company under Section 15.4 (Notices), may be sent via one of the methods listed below.

Email: [email protected]

Mail: Infisical Inc., 235 2nd St, Unit 110, San Francisco, CA 94105