Terms of Service

Subject to the terms and conditions of this Agreement, Customer may provide Foundational with access to Customer's specific accounts on third party services as agreed between the Parties in writing, such as GitHub, Inc. (the "Customer Accounts"), as determined by Customer, to enable Foundational to deliver a service as described in one or more valid Purchase Orders ("Services") through Foundational’s proprietary technology as shall be hosted on a third party cloud service (the "Foundational Platform"). 

Upon the launch of the minimum functionality agreed between the parties in writing (the "Commencement Date") and subject to Customer's compliance with the terms and conditions of this Agreement, Foundational grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, limited, revocable license for Customer and its employees, agents, representatives and contractors who are permitted access to the Services by Foundational ("Authorized Users") to access the Foundational Platform, for Customer’s internal business use, in connection with Customer Accounts; and (ii) use the APIs necessary to connect Customer Accounts to the Foundational Platform according to Foundational’s guidance.  

Register with Foundational, and authenticate the Foundational Platform to any necessary Customer Accounts, according to the guidelines provided in writing (email sufficient) by Foundational, to allow Foundational access to the Customer Accounts. Customer may revoke such access at any moment, without prior notice to the Foundational. Customer acknowledges that if Customer does not provide accurate and up to date credentials, the Services may be negatively impacted, or may not be provided at all;

use the Foundational Platform and the Services, and all related software and documentation in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws. Customer represents and warrants that no third party agreement prevents it from using the Foundational Platform as contemplated hereunder, including any terms governing Customer's use of the Customer Accounts; and 

manage and secure all API keys and login credentials used by Authorized Users in connection with their use of the Foundational Platform, and protect the same against unauthorized use or disclosure.

All intellectual property rights in the Foundational Platform, the Services and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Foundational. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Foundational Platform, Service or any part thereof for any purpose or use it to build a competitive service or product; (ii) not represent that it possesses any proprietary interest in Foundational Platform, the Service, or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest Foundational's intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by Foundational, not use the name, trademarks, trade-names, and logos of Foundational; (v) except as specifically permitted herein, not copy any part or content of the Foundational Platform, reports or documentation other than for Customer’s own internal business purposes; (vi) not copy any features, functions or graphics of the Foundational Platform or use it to build a competitive product or service; and (vii) not remove the copyright, trademark and other proprietary notices contained on or in Foundational's Platform, products, services or documentation. All intellectual property rights in the data stored on Customer Accounts and in any modifications, enhancements and derivatives thereof (collectively, “Customer IPR”) lie exclusively with Customer or its licensors. Customer shall take no action, directly or indirectly, to register Foundational trademarks (or their variation), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to Foundational to prevent the occurrence of such activity by any third parties.

Customer hereby grants to Foundational a non-exclusive, non-sublicensable, revocable, non-transferable, royalty-free, worldwide license during the Term to use, reproduce, and prepare derivative works of all data provided to Foundational by Customer in connection with this Agreement solely to permit Foundational to perform the Services to Customer as set forth in this Agreement, and to analyze anonymized data obtained through Services in order to provide Customer with analytics and reports, all subject to Foundational’s compliance with applicable law and privacy regulations.     

Each party (the “Receiving Party”) agrees (i) not to disclose the other Party’s (the “DisclosingParty”) Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the Disclosing Party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, the Receiving Party will give prompt notice to the Disclosing Party so that it may seek a protective order or other appropriate relief.  The confidentiality obligations hereunder shall expire five years from the date of termination or expiration of this Agreement (and with respect to trade secrets – in perpetuity) and shall supersede any previous confidentiality undertakings between the parties.  

For the purposes hereof, "Confidential Information" means any proprietary or trade secret information disclosed by one party to the other which is marked as “confidential” or that can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the Disclosing Party; (iii) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the Receiving Party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information.  For avoidance of doubt, Customer IPR shall be deemed Customer’s Confidential Information. 

For the purposes hereof, "Confidential Information" means any proprietary or trade secret information disclosed by one party to the other which is marked as “confidential” or that can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the Disclosing Party; (iii) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the Receiving Party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information.  For avoidance of doubt, Customer IPR shall be deemed Customer’s Confidential Information. 

EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, FOUNDATIONAL PROVIDES THE FOUNDATIONAL PLATFORM, SERVICES, AND DOCUMENTATION TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND FOUNDATIONAL EXPRESSLY DISCLAIMS, , ALL WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHENTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. FOUNDATIONAL FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE FOUNDATIONAL PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

Customer acknowledges that the quality and accuracy of the Services are dependent on the accuracy and completeness of the information provided. CUSTOMER ACKNOWLEDGES THAT FOUNDATIONAL SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY FOR FAULTS, ERRORS OR ERRONEOUS RECOMMENDATIONS PROVIDED ON THE BASIS OF UNTIMELY, INCOMPLETE, INACCURATE, FALSE OR MISLEADING INFORMATION PROVIDED INTENTIONALLY BY CUSTOMER OR THE AUTHORIZED USERS.

EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR BREACH OF CONFIDENTIALITY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO FOUNDATIONAL DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR BREACH OF CONFIDENTIALITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

This Agreement shall commence on the Effective Date and will continue for a period of twelve (12) months following the Commencement Date (the "Initial Term"); thereafter, the Agreement shall terminate, unless the parties agree in writing to extend the Initial Term by an additional twelve (12) months period (the “Additional Term”, and together with the Initial Term, the “Term”). 

Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy.

All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or by facsimile or email transmission with written confirmation of receipt, addressed to the address set forth in the preamble to this Agreement or to such other address as any party here to may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by facsimile or email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting. 

Subject to Customer’s prior written approval, Foundational may issue publicity or general marketing communications concerning its involvement with the Customer. Any display of Customer’s name, trademarks and logos (“Customer’s Marks”) shall comply with any written instructions provided by the Customer relating thereto upon receipt thereof from the Customer. Notwithstanding the foregoing, Foundational shall not, in a manner not authorized under this Agreement: (a) use and/or make available the Customer’s Marks other than as permitted under this Agreement; (b) add to, delete, translate or otherwise modify such Customer’s Mark; (c) syndicate, sublicense or sub distribute any Customer’s Marks; (d) display the Customer’s Marks in any way that would imply that Foundational is a publisher, distributor or a source of the Customer’s Marks; or (e) display and/or use the Customer’s Marks in any way that may disparage and/or otherwise impair the Customer and/or the Customer’s Marks. 

This Agreement constitutes the entire agreement between Foundational and Customer and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made only in writing. Customer may transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. For all purposes under this Agreement, each party will be and act as an independent contractor of the other and will not bind or attempt to bind the other to any contract, and nothing contained herein shall be deemed to constitute either party as an employee, partner, joint venturer, or agent of the other party. This Agreement is governed by the laws of the State of New York, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of New York.