TERMS & CONDITIONS

The www.simulation.cloud Platform (the Platform) Terms of Use (“Agreement”) is a legal agreement between you (“Subscriber”, “You”) and Flexcompute Inc., a Delaware corporation (“Flexcompute”, “We”, “Our”). Flexcompute is providing a software as service offering for cloud-based simulation of computational electrodynamics and fluid aerodynamics (“Service”). Please read these Terms of Use carefully before using the Platform. We may update this Agreement from time to time, and your continued use of the Platform constitutes acceptance by you of any updates.

BY COMPLETING A REGISTRATION FORM AND SELECTING “I ACCEPT” CHECKBOX DURING THE ACCOUNT REGISTRATION PROCESS OR BY USING THE PLATFORM YOU AGREE THAT YOU HAVE READ AND AGREE TO FULLY COMPLY WITH AND BE FULLY BOUND BY THIS AGREEMENT. YOU MUST BE OF A LEGAL AGE TO FORM A BINDING CONTRACT WITH FLEXCOMPUTE AND MUST NOT BE A PERSON PROHIBITED FROM ACCEPTING THE SERVICE UNDER THE LAWS OF THE UNITED STATES OF AMERICA.

1. ACCESS TO THE SERVICE

1. To use the Service, the Subscriber must create an account using the Service home page www.simulation.cloud. The account is created by clicking on the “Sign Up” button on the home page, following the steps provided, and entering the necessary information.

2. ACCEPTABLE USE

1. The Subscriber shall (1) comply with this Agreement while using the Service; (2) use all possible efforts to prevent unauthorized access to or use of the Service; (3) hold login information confidential; (4) immediately inform Flexcompute of any illegal or unauthorized activity or a security breach (including any loss, theft, or unauthorized disclosure or use of a username, password, or account). You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof) for any purpose.
   
   
2. The Subscriber shall not (1) permit any third party to access or use a username or password for the Service; (2) provide access to the Service account to another person (including for resale); (3) use the Services to process data that infringes third party trademarks, copyrights, or other intellectual property; (4) upload to the Service any file that contains or redirects to a virus, worm, Trojan horse, or other harmful technology or component that unlawfully accesses or downloads content or information stored within the Service or on the hardware of Flexcompute or any third party; (5) decompile, interfere with, hack, reverse engineer, disassemble, modify, copy, or disrupt the functionality, integrity, features, or performance of the Service; (6) attempt to gain unauthorized access to the Service or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services; (7) access the Service in order to create a comparable or similar Service or copy any features, graphics, ideas, or functions of the Service; (8) create accounts for the Service by any means other than Service interface (scraping, creating accounts in bulk);(9) Upload any Subscriber Data that Subscriber is not authorized to upload.

3. UPLOADING OF FILES

1. The Subscriber shall upload files required for the provision of the Service (geometric information and mesh model for example). The Subscriber shall receive aerodynamics simulation data as a result of the provision of Service (together "Subscriber Data"). The Subscriber is solely liable for the accuracy and completeness of the uploaded files.
   
   
2. The Subscriber can use the Services results in any applicable and legal way.

4. TECHNICAL MATTERS

1. During the use of the Service, Flexcompute shall render reasonable technical support services and maintenance relating to the Service.
   
   
2. Flexcompute's Service may be temporarily unavailable due to scheduled system maintenance or events of force majeure. Scheduled system maintenance shall take place during a usual maintenance window, determined by Flexcompute. Emergency maintenance is required at other times in the event of system failure.
   
   
3. Troubleshooting and Technical Support: By using this Service, the Subscriber acknowledges and agrees that in the event of troubleshooting activities, Subscriber questions, or to respond to technical support requests, Flexcompute's authorized personnel may access, review, and/or modify Subscriber Data, including but not limited to data uploaded or processed by Subscriber, error logs, system configurations, and related information. The primary purpose of such access is for the purpose of diagnosing and resolving any technical issues, improving Subscriber’s experience with the Service, and improving the Service's performance. Subscriber grants Flexcompute the right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Subscriber Data: (a) solely for the purpose of providing the Service and responding to customer inquiries, and (b) to address and otherwise resolve support requests, technical issues, and/or security issues. Flexcompute respects the Subscriber's privacy and will handle the Subscriber's user data in accordance with Flexcompute's Privacy Policy.
   
   

5. FEES

1. Invoice Payment: Flexcompute will invoice the Subscriber prior to the processing of files uploaded for the provision of Services. All quoted fees are payable in advance and are exclusive of taxes, which Flexcompute will charge or invoice as applicable, and you agree to pay any such taxes applicable to your use of the Service. Payment instructions shall be as set out on Flexcompute’s invoice. All quotes and fees are payable prior the receiving of Service results.

6. INTELLECTUAL PROPERTY

1. Flexcompute License Grant: The Subscriber owns the simulation results created in connection with Subscriber’s use of the Services. Flexcompute herewith grants to the Subscriber a permanent, irrevocable, non-exclusive, royalty-free, transferable right and license to use these results. The Subscriber is eligible to use the results of the Service for any legal purpose as well as to sell, resell, rent, lease or distribute it to any third party. Flexcompute does not own these results and may not use them for any purpose without explicit authorization from the Subscriber.
   
   
2. Platform ownership: All rights, copyrights, patents, trade secrets, trade dress, know-how, technical information, inventions, discoveries, improvements, ideas, concepts, discoveries and other proprietary rights, and any derivative works thereof (including Improvements) embodied in the Platform belong solely and exclusively to Flexcompute.
   
   
3. Trademarks: The Flexcompute, Flow360, and Tidy3D names and logos are trademarks of Flexcompute and may not be used, copied, or imitated, in whole or in part, without the express prior written approval of Flexcompute. The look and feel of the Platform (including all page headers, custom graphics, button icons, and scripts) form the trademarks, service marks and trade dress, belonging to Flexcompute and may not be used, copied and/or imitated in whole or in part, without the express prior written approval of Flexcompute.

7. WARRANTIES, DISCLAIMER

1. Each party warrants and represents that it is eligible to enter into this Agreement.
   
   
2. Subscriber warrants and represents that its use of the Platform and the Service will comply with, and at all times meet, its representations and obligations outlined in Section 2.
   
   
3. DISCLAIMERS: EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS.” FLEXCOMPUTE DOES NOT PROVIDE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR FREE OF DEFECTS, ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR OF NON-INFRINGEMENT, AND THAT SUCH RESULTS CAN BE USED FOR ACTUAL PRODUCING OF ANY GOODS OR PRODUCTS, AND ANY WARRANTY THAT IT CAN HANDLE UNEXPECTED PROCESSING VOLUMES (AS APPLICABLE), IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER FLEXCOMPUTE NOR ANY THIRD-PARTY PROVIDER PROVIDES LEGAL OR REGULATORY ADVICE IN CONNECTION WITH THE SERVICES OR THE PLATFORM. Without limiting the foregoing disclaimers, the Subscriber agrees that Flexcompute shall not be liable for the failures, operations or acts or omissions of any of the foregoing.

8. LIMITATION OF LIABILITY

1. THE SUBSCRIBER RECOGNIZES THAT ANY BREACH OF CLAUSE 2.2. OF THIS AGREEMENT WILL RESULT IN IRREPARABLE INJURY TO FLEXCOMPUTE AND THAT MONETARY DAMAGES ALONE WILL BE AN INADEQUATE REMEDY IN SUCH CASE. THE SUBSCRIBER THEREFORE AGREES THAT THE FLEXCOMPUTE MAY, IF IT SO ELECTS, INSTITUTE AND PROSECUTE PROCEEDINGS IN ANY COURT OF COMPETENT JURISDICTION, EITHER IN LAW OR IN EQUITY, TO OBTAIN DAMAGES FOR ANY BREACH OF THIS AGREEMENT, OR TO ENFORCE THE SPECIFIC PERFORMANCE OF THIS AGREEMENT BY THE SUBSCRIBER, OR TO RESTRAIN OR ENJOIN RECIPIENT FROM ALL ACTIVITIES IN VIOLATION OF THIS AGREEMENT. FLEXCOMPUTE SHALL BE ENTITLED TO RECOVER ANY AND ALL COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, IN ENFORCING THIS AGREEMENT.
   
   
2. IN NO EVENT SHALL (1) FLEXCOMPUTE BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF BUSINESS, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFICTION) APPEARING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES; (2) FLEXCOMPUTE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000 OR THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.

9. INDEMNIFICATION

1. Flexcompute shall indemnify, defend and hold harmless the Subscriber against any demand, claim, penalties, suit, investigation, cost or proceeding made or brought against Subscriber by a third party claiming that the use of the Platform infringes or misappropriates the intellectual property rights of a third party. In such case Flexcompute shall indemnify Subscriber for any damages finally awarded against Subscriber in connection with any such Claim; provided, that Subscriber (1) promptly gives Flexcompute written notice of the Claim; (2) gives Flexcompute sole control of the defense and settlement of the Claim; and (3) provides Flexcompute all reasonable assistance, at Subscriber’s expense.
   
   
2. The Subscriber shall indemnify, defend, and hold harmless Flexcompute and its subsidiaries and employees (including but not limited to agents, licensors, managers and other affiliated companies and their employees, contractors, agents, officers, and directors) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, expenses (including but not limited to attorney’s fees) arising from: (1) any other party’s access and use of the Service with Subscriber’s unique username, password or other appropriate security code; (2) Subscriber’s violation of any term of this Agreement, including without limitation Subscriber’s breach of any of the representations or warranties hereunder or Subscriber’s Responsibilities set forth in Section 2 or any of the Service-Specific Terms; (3) Subscriber’s use of and access to the Platform and the Services, including any Data or Content provided, transmitted or received by Subscriber; (4) Subscriber’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (4) Subscriber’s willful misconduct.

10. TERM AND TERMINATION

1. This Agreement will start on the date noted on the Confirmation Email transferred to the Subscriber and last until the Subscriber, account is terminated.
   
   
2. The Subscriber may terminate his account and/or stop using the Service at any time.
   
   
3. The Flexcompute may at any time immediately terminate or suspend all or a portion of Subscriber's account and/or access to the Service under the following circumstances: (a) violations of the Agreement or any other policies that are referenced herein; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (c) Subscriber's participation in fraudulent or illegal activities.
   
   
4. In no event shall termination of this Agreement relieve the Subscriber of the responsibility to pay any Fees payable to Flexcompute for the period before the effective date of termination.
   
   

11. CONFIDENTIALITY

1. Confidential Information means all confidential information disclosed by one party (“Discloser”) to the other party (“Recipient”), whether orally, in writing, or any other possible way that is designated as confidential or that logically should be recognized as confidential when taking into account its nature and conditions of disclosure. Flexcompute's Confidential Information shall include the Platform. The Subscriber’s Confidential Information shall include the files uploaded for the provision of Service; Meanwhile, Confidential Information of both parties shall cover any marketing plans, business, technology, product plans, technical information, and designs, and business processes disclosed by such party.
   
   
2. The Recipient shall adopt the same level of care that it uses to protect its confidential information of like kind and shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient shall limit access to Confidential Information of the Discloser to those of its contractors, employees, and agents who need such access for purposes compatible with this Agreement and who have signed a non-disclosure agreement with the Recipient containing protections no less stringent than those herein.
   
   
3. Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (b) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (c) is received from a third party without breach of any obligation owed to the Discloser, or (d) was independently developed by the Recipient.
   
   
4. Without limiting the aforesaid, Flexcompute shall maintain proper physical, administrative and technical safeguards for security and confidentiality of the Subscriber's data in Flexcompute possession and control from unauthorized use and access. Flexcompute shall promptly notify the Subscriber in case of an unauthorized party accessing and acquiring Subscriber's data.
   
   
5. The Recipient may disclose Confidential Information of the Discloser if it is compelled by law to do so, provided the Recipient gives the Discloser a prior written notice of such compelled disclosure. In the case of when Confidential Information is disclosed as part of a civil proceeding to which the Discloser is a party, the Discloser shall not contest the disclosure.

12. PRIVACY

1. Flexcompute shall process personal information processed, collected, used, and received by Flexcompute for the provision of the Service as per this Agreement and Flexcompute.
   
   
2. Flexcompute shall classify all such personal information as confidential information and treat it accordingly.
   
   

13. LAW AND JURISDICTION

1. This Agreement shall be governed by the law of the state of Delaware and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any actions, disputes, causes of action, or claims arising out of, or in connection with, this Agreement or the Platform shall be subject to the exclusive jurisdiction of the state and federal courts located in the state of Delaware.
   
   
2. Both parties waive any right to jury trial in connection with any action or litigation in any way arising out of, or related to, this Agreement.

14. MISCELLANEOUS

1. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
   
   
2. Both parties shall comply with the export regulations and laws of the United States of America and other applicable jurisdictions in providing and using the Service. Without limiting the aforesaid, each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports.
3. Neither party may assign any of its rights or obligations hereunder, without the prior written consent of the other party.
   
   
4. Any obligations and rights under this Agreement which by their nature should survive, (including, but not limited to any payment obligations invoiced prior to the termination or expiration hereof) will remain effective after termination or expiration hereof.