Phoenix Platform - Terms & Conditions

1. Definitions

2. Services

2.1 License

Client hereby grants Def Method a revocable, exclusive, non-transferable, non-sublicensable, limited right to access and use the Client Codebase solely to generate Unit Tests.

2.2 Access & Operation

The Phoenix Services connect to the Client Codebase via read-only credentials, clone the repository into an isolated environment, and programmatically generate Unit Tests in the Generated Tests Repository and calculate metrics.

2.3 Delivery of Unit Tests

Upon generation, Phoenix grants Client read-only access to the Generated Tests Repository. Client may review, export, and (at its sole discretion) merge the Unit Tests into its own Codebase. Client is responsible and liable for all uses of the Phoenix Services resulting from read-only access and any other use of the Phoenix Services, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of its personnel, and any act or omission by such personnel that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all personnel aware of this Agreement's provisions as applicable to such personnel's use of the Phoenix Services and shall cause all personnel to comply with such provisions.

2.4 Use Restrictions

Client shall not, and shall not permit any personnel to, use the Phoenix Services, any software component of the Phoenix Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any personnel to: (i) copy, modify, or create derivative works of the Phoenix Services, any software component of the Phoenix Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Phoenix Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Phoenix Services, in whole or in part; (iv) remove any proprietary notices from the Phoenix Services or Documentation; or (v) use the Phoenix Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.

2.5 Aggregated Statistics

Notwithstanding anything to the contrary in this Agreement, Def Method may monitor Client's use of the Phoenix Services and collect and compile data and information related to such use to be used in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Phoenix Services. As between Def Method and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Def Method. Aggregated Statistics will not identify Client, Client Data, or Client's Confidential Information.

2.6 Suspension

Notwithstanding anything to the contrary in this Agreement, Def Method may temporarily suspend Client's and any other personnel's access to any portion or all of the Phoenix Services if: (i) Def Method reasonably determines that (A) there is a threat or attack on any of the Def Method IP; (B) Client's or any other personnel's use of the Def Method IP disrupts or poses a security risk to the Def Method IP or to any other Client or vendor of Def Method; (C) Client or any other personnel is using the Def Method IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Def Method's provision of the Phoenix Services to Client or any other personnel is prohibited by applicable law; (ii) any vendor of Def Method has suspended or terminated Def Method's access to or use of any third-party services or products required to enable Client to access the Phoenix Services; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Def Method shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Phoenix Services following any Service Suspension. Def Method shall use commercially reasonable efforts to resume providing access to the Phoenix Services as soon as reasonably possible after the event giving rise to the Phoenix Services Suspension is cured. Def Method will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Client or any other personnel may incur as a result of a Service Suspension.

2.7 Storage Practices

Def Method does not store or otherwise process Client Data or Personal Data contained in a Client Codebase beyond transient, in-memory use necessary to generate Unit Tests.

2.8 Reservation of Rights

Def Method reserves all rights not expressly granted to the Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to the Client or any third party, any intellectual property rights or other right, title, or interest in or to the intellectual property owned by Def Method.

3. Client Obligations

• Comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be provided by us from time to time.
• Provide accurate repository credentials and maintain the security of those credentials.
• Ensure that Client Codebase does not infringe third-party rights or contain unlawful content.
• Review Unit Tests before incorporation and verify that they meet Client's coding standards, security requirements, and open-source compliance obligations.

4. Data Security & Privacy

4.1 No PII Retention

Def Method does not store, mine, or use Personal Data from the Client Codebase. Client Data is processed in volatile memory only.

4.2 Security

Def Method implements industry-standard administrative, technical, and physical safeguards (including network isolation, encryption in transit, and least-privilege access) to protect Client Data and Personal Data within Client Data (if any).

5. Intellectual Property

5.1 Def Method IP

Def Method owns all right, title, and interest in the Phoenix Services, including without limitation all algorithms, models, templates, documentation, and feedback ("Def Method Materials"). No rights are granted except as expressly stated herein.

5.2 Client IP

Client retains all right, title, and interest in the Client Codebase, Personal Data, Client Data and any Unit Tests that Client merges into its own repositories, with the exception of Def Method IP incorporated within the Unit Tests.

5.4 License to Client

Def Method grants Client a worldwide, perpetual, non-transferable, non-sublicensable license to use and distribute the Unit Tests generated for Client.

5.5 Privacy Policy

Def Method complies with its privacy policy, available at https://www.defmethod.com/privacy ("Privacy Policy"), in providing the Phoenix Services. By accessing, using, and providing information to or through the Phoenix Services, Client acknowledges that it has reviewed and accepted the Privacy Policy and consents to Def Method's handling of Client Data consistent with the then-current version of the Privacy Policy.

6. Fees & Payment

6.1 Subscriptions

Fees are invoiced either annually in advance for each 12-month Term or monthly in advance for each 1-month Term, as specified in the applicable Order Form. If Client uses more credits than are included in the selected plan during any month, Client will be charged overage fees at the then-current overage rates.

6.2 Renewals

Unless either party provides written notice of non-renewal at least 30 calendar days prior to the end of the then-current Term, the Agreement renews for successive 12-month Terms for annual subscriptions or for successive 1-month Terms for monthly subscriptions at the then-current rates.

6.3 Taxes & Late Fees

Client is responsible for applicable taxes. Overdue amounts accrue interest at 1.5% per month (or the maximum legal rate, if lower).

7. Term & Termination

7.1 Term

This Agreement begins on the Effective Date and continues provided that Client maintains its subscription.

7.2 Client Disconnection

Client may disconnect Phoenix at any time via the in-product control or 30 calendar days written notice; however, prepaid fees are non-refundable.

7.3 Suspension

Def Method may suspend access for (a) its security emergencies or (b) Client's failure to cure non-payment within 30 days after written notice.

7.4 Termination

Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 calendar days after the non-breaching party provides the breaching party with written notice of such breach.

7.5 Effect of Termination and Expiration

Upon termination or expiration of this Agreement, (i) Client's access to the Phoenix Services ceases; (ii) Def Method shall delete all Client Data, Generated Test Repositories, and credentials within 30 days of the termination or expiration date.

10. Indemnification

10.1 Mutual Indemnification

Each Party shall indemnify, defend and hold harmless the other Party and its parents and subsidiaries, members, managers, stockholders, directors, officers, employees, representatives and agents (each an "Indemnitee") from and against any and all claims, damages, losses, liabilities, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind arising therefrom, including but not limited to reasonable attorneys' fees (collectively, "Losses"), solely arising from breach of this Agreement.

Def Method Indemnification

Except as provided below, Def Method further agrees to indemnify, defend and hold harmless Client from any and all claims by a third party that (i) Def Method's work involved the use of a third parties' software vendor rights without permission, (ii) any negligent acts, errors or omissions by Def Method and (iii) the Unit Tests or the Phoenix Services infringe the intellectual property rights of any third party. This indemnification does not apply to the extent claims arise from (i) content provided by Client to Def Method; (ii) work performed by Client (or any third party on Client's behalf) involving Client's selection and unauthorized use of third-party software during or after the Term; (iii) work performed by Def Method using third-party software that Client requires Def Method to use in performing the Phoenix Services; or (iv) Client's own acts and omissions.

11. Limitation of Liability

IN NO EVENT WILL DEF METHOD BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER DEF METHOD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL DEF METHOD'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DEF METHOD UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Export Regulation

12.1 Export Regulation

The Phoenix Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Phoenix Services or the software or technology included in the Phoenix Services to, or make the Phoenix Services or the software or technology included in the Phoenix Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Phoenix Services or the software or technology included in the Phoenix Services available outside the US.

12.2 US Government Rights

Each of the software components that constitute the Phoenix Services and the Documentation is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Phoenix Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.

13. Miscellaneous

13.1 Reference

Each party may reference the other and describe, in summary and general form, the work performed under this Agreement or any SOW, provided no Confidential Information of the other party is disclosed.

13.2 Headings

Section headings are for convenience only and shall not affect the interpretation of this Agreement.

13.3 Governing Law & Venue

This Agreement is deemed executed in New York, New York and is governed by the laws of the State of New York, without regard to its conflict-of-law principles. For any litigation arising under or relating to this Agreement, each party irrevocably submits to the exclusive jurisdiction and venue of the New York City Civil Court, the New York State Supreme Court, or the United States District Court for the Southern District of New York, whichever is appropriate, all located in Manhattan. Each party waives personal service of process and agrees to accept service via electronic mail and/or express courier (e.g., Federal Express).

13.4 Attorneys' Fees

In any action at law or in equity to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, necessary disbursements, interest at the maximum rate permitted by law, and any other relief to which it may be entitled.

13.5 Survival

Sections 4 (Data Security & Privacy), 5 (Intellectual Property), 6 (Fees & Payment), 7 (Term & Termination), 8 (Confidentiality), 9 (Warranties & Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), and any provisions which by their terms or nature are intended to survive, shall survive expiration or termination of this Agreement.

13.6 Entire Agreement

This Agreement—including any Order Forms, Statements of Work, appendices, and a Data Processing Addendum (if applicable)—supersedes all prior oral or written representations, communications, or agreements between the parties regarding its subject matter and constitutes the final and entire understanding of the parties. No amendment or modification is effective unless in writing and signed by authorized representatives of both parties.

13.7 Execution; Counterparts

This Agreement may be executed in any number of counterparts (including by electronic signature, facsimile, or scanned signature email), each of which is deemed an original and all of which together constitute one instrument.

13.8 Assignment

Neither party may assign this Agreement without the prior written consent of the other, except to a successor in connection with a merger, acquisition, or sale of substantially all assets.

13.9 Notices

All notices required or permitted under this Agreement must be in written email form and will be deemed effective on the date the email is sent to the addresses specified below, provided the sender does not receive any message-failure notification. Client's notice email address is the same address used on the Order Form (or any replacement address designated in writing). Def Method's notice email address is joe.leo@defmethod.com.

13.10 Severability

If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that provision shall be severed and the remaining provisions will remain in full force and effect, and the Agreement shall be construed so as to effectuate its original intent to the maximum extent possible.

13.11 Waiver

The waiver of any breach of this Agreement or failure to exercise any right shall not constitute a waiver of any subsequent breach or right, and no waiver shall be effective unless in writing signed by the waiving party.

13.12 Force Majeure

Except for payment obligations, neither party shall be liable for any failure or delay in performance caused by circumstances beyond its reasonable control, including without limitation acts of God, war, terrorism, government actions, fire, flood, epidemic, pandemic, quarantine restrictions, freight embargoes, strikes, civil commotion, or similar events. Nothing in this Section relieves Client of its obligation to pay any undisputed portion of an invoice.

13.13 Authority

Each of the Parties represents and warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit or be contrary to any other agreement.