CUSTOMER TERMS AND CONDITIONS

1.     AGREEMENT

1. Please read these Terms of Use ("Terms of Use" or "Terms") carefully before accessing the Finite State Platform (“Platform”) or using the services available thereon ("Service") operated by Finite State, Inc. (“Finite State”).
   
   
2. Any party accessing the Platform and/or using the Service (“Customer”) is subject to compliance with these Terms. By accessing the Platform or using the Service, Customer (and anyone representing Customer) agrees to be bound by these Terms. If any Customer (or their representative) disagrees with any part of these Terms, then that party may neither access the Platform nor use the Service.

2.     DEFINITIONS

1. “Feedback” means Customer’s comments, ideas, suggestions, or proposals provided to Finite State.
2. “Finite State Platform” or “Platform” means the Finite State software used to analyze Customer-provided Firmware images.
3. “Finite State Raw Data” means the raw data Finite State produces from the analysis of Customer-provided Firmware images using Platform.
4. “Firmware” means the third-party or Customer-owned software, configuration files, or operating system associated with a particular make and model of a single, physical device. For purposes of these Terms and Conditions, a single Firmware image typically has a size of less than 2GB.
5. “Intellectual Property Rights” means all intellectual property rights, including patents, copyrights, trademarks, and trade secrets. 

3.     REPRESENTATIONS AND WARRANTIES

1. Customer represents and warrants that:

1. 1. It has full power and authority to engage Finite State and use the Finite State Platform with all elements of the Customer-provided Firmware;
   2. It will access the Platform and use the Service in accordance with this Agreement and all applicable laws and regulations, to include export controls;
   3. It will only use the Platform for purposes of lawful cybersecurity diagnosis and defense of Customer’s own network, devices, products, or Firmware used in Customer’s devices;
   4. It will not (a) license, sublicense, sell, resell, rent, lease, transfer, distribute, or otherwise similarly exploit the Platform; or (b) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover any source code or modify the Platform except as otherwise expressly permitted by law; and
   5. To the extent Customer uploads Firmware to the Finite State Platform, Customer warrants that all content contained in the Customer-provided Firmware complies with these Terms and our Privacy Policy and that Customer either is the original owner of the Firmware or that Customer has the necessary rights and permissions to submit the Firmware to the security analysis detailed in the Order Form.
   6. Upon the termination or expiration of the Term, Customer will immediately discontinue use of the Services and delete or destroy all copies of the Services in its possession or control.

 B. Finite State represents and warrants that it will perform its obligations under these Terms and Conditions:

1. 1. In a professional and workmanlike manner with due care and diligence and to the highest standards of quality as is customary in Finite State’s industry;
   2. In accordance with all applicable professional standards for the field of expertise; and
   3. In compliance with all applicable laws, treaties, rules, regulations and conventions.

C. EXCEPT FOR THE WARRANTIES GIVEN BY FINITE STATE IN THESE TERMS AND CONDITIONS, FINITE STATE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. FINITE STATE HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE PLATFORM OR THAT THE FUNCTION OF THE PLATFORM IS OR WILL BE ERROR FREE, WILL IDENTIFY ALL VULNERABILITIES IN A PRODUCT, OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

4.     OWNERSHIP

1. Finite State grants Customer rights to access the Platform and use the Service as outlined in any applicable Order Form solely for Customer’s own internal, product security, and Firmware analysis purposes. Included in this grant, Finite State agrees to process Customer-provided Firmware images in accordance with any applicable Order Form.
   
   
2. Except for the rights expressly granted under these Terms and Conditions, Finite State retains all rights (including Intellectual Property Rights) in and to the Platform, Finite State Raw Data, Feedback, and any related documentation, including updates and enhancements thereto. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary notices of Finite State.
   
   
3. Customer owns any risk reports generated based upon information provided by Customer.

5.     CONFIDENTIAL INFORMATION

1. “Confidential Information” means all confidential or proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Confidential Information shall not include information that, as demonstrated by contemporaneous written records or other competent evidence, (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
   
   
2. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (i) restrict use of any Confidential Information of Disclosing Party only for purposes expressly authorized by or necessary for the performance of these Terms and Conditions (to include security research and development of new and derivative products and services) and (ii) limit access to Confidential Information of Disclosing Party to those of its and its affiliates’ employees, contractors and agents (“Representatives”) who need such access for purposes consistent with these Terms and Conditions and who have a duty or obligation of confidentiality no less stringent than that set forth herein, provided that any breach of this Section 5 by a Representative will be deemed to be a breach by the Receiving Party.
   
   
3. Notwithstanding any other provision in these Terms and Conditions, during the course of working together, each Party may further develop its general knowledge, skills, and experience, and these Terms and Conditions shall not restrict such Party from using, disclosing, and employing any generalized ideas, concepts, know-how, methods, discoveries, techniques or skills gained or learned, including in connection with its use of its own confidential or proprietary information, provided that such disclosure does not otherwise violate the confidentiality obligations of this Section 5.

6.     AUTHORIZATIONS AND WAIVERS

1. For the duration of any applicable Order Form, Customer grants Finite State a license to reverse engineer and make copies of Customer-provided Firmware, including both static and dynamic analysis, for the purpose of performing security research to assess risks associated with Customer-provided Firmware.
2. Customer authorizes Finite State to circumvent any technical measures necessary to gain full access to Customer-provided Firmware, software, data, and metadata stored in Customer-provided Firmware images for the sole purpose of performing security research to assess risks associated with Customer-provided Firmware, as agreed in an Order Form.

7.     LIMITATION OF LIABILITY

1. NEITHER FINITE STATE NOR CUSTOMER SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THESE TERMS AND CONDITIONS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   
2. NEITHER PARTY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO FINITE STATE PURSUANT TO THESE TERMS AND CONDITIONS IN THE 12 MONTHS PRECEDING THE CLAIM.
   
   

   8.  GENERAL PROVISIONS

1. Governing Law and Jurisdiction. These Terms and Conditions shall be governed and construed in accordance with the laws of the State of Ohio, excluding its conflicts of law rules.
2. Arbitration. Any dispute or controversy arising under or in connection with these Terms and Conditions shall be settled exclusively by arbitration, conducted before a panel of three arbitrators in Columbus, Ohio, in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction; the expense of such arbitration shall be shared equally by the Parties.
3. Renewal. At the end of the initial period of engagement (“Initial Term") or any Renewal Term, these Terms and Conditions will automatically renew for a period of time equal to the Initial Term (the “Renewal Term”) unless either Party elects to not to renew by notifying the other Party in writing of their intent to non-renew no less than 30 calendar days prior to the end of the Initial Term or the then-current Renewal Term. If no duration is specified for the Initial Term or a Renewal Term, the default duration will be 12 months. The Initial Term, combined with any Renewal, shall be referred to as the “Term.”
4. True-Up. If, during the initial term or any renewal term, Customer exceeds the allotted number of scans/uploads in an existing order form or purchase order, Customer agrees to pay an additional fee (on a pro-rata basis) for each scan and/or upload beyond the allotted number(s). Finite State may invoice Customer for such additional fees at the end of the quarter in which such additional fees were incurred.
5. Fees. Fees are payable in USD. Payments on all invoices are due within thirty (30) days. Any dispute to charges must be communicated to Finite State within thirty (30) days of the date of receipt of invoice.
6. Late Payment. All outstanding amounts owing past the due date under these Terms and Conditions will incur interest at the lower of: (1) a rate of 1.5 percent per month, or (2) the maximum interest rate permitted by applicable laws), commencing on the due date, calculated monthly, until such time as they are paid in full.
7. Taxes. Customer is solely responsible for payment of any goods and services taxes, sales taxes, value added taxes, and excise taxes, as applicable resulting from Customer’s use of the Services (excluding any taxes attributable to Finite State’s income).
8. Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given if: (i) delivered by hand on the date of delivery, or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, in either case to the address listed in the preamble to this Agreement.
9. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11. Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
12. Import and Export Compliance. Each Party shall comply with all applicable import, re-import, export and re-export control laws, treaties, agreements, and regulations.
13. Force Majeure. Neither Party shall be liable under this Agreement for delays or failures due to causes beyond its reasonable control.
14. Publicity. Neither Party will make existence or terms of this Agreement public nor have any right to use the names, logos, symbols and/or any other trademarks of the other party, without prior written permission from such other party, except that Finite State is authorized to disclose the fact of the engagement (but not the details thereof) with Customer on its website or in promotional materials.
15. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, the provision shall be modified so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
16. Survival. All provisions of this Agreement which, by their nature, should survive termination of this Agreement shall survive.
17. Assignment. Neither Party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent will not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party.
18. Entire Agreement. This Agreement, along with any applicable Order Form(s), constitutes the entire agreement between the Parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. In the event of a conflict between these Terms and Conditions and any Order Form, these Terms and Conditions prevail, unless such Order Form expressly amends these Terms and Conditions.
19. Modification, Amendment, Waiver. Finite State reserves the right from time to time to modify these Terms and Conditions. If Finite State makes a material change to any of the Terms and Conditions, then Finite State will notify Customer either by email or mail to the address provided to Finite State. The current version of these Terms and Conditions can be found on https://finitestate.io/customerterms. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.