Terms of Service

These Terms of Service (the "Terms") form a binding agreement between OptiFlow Labs LLC ("OptiFlow Labs," "we," "us," or "our") and the organization or individual accessing the FailSafe platform ("Customer," "you," or "your"). Please read them carefully. If you are accepting these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these Terms. If you do not agree, do not use the Service.

01Definitions

• Service means the FailSafe platform, including the web portal at portal.optiflowlabs.ai, related APIs, reports, documentation, and any professional services delivered by OptiFlow Labs under these Terms.
• Subscription means an ongoing FailSafe service billed on a 12 month term and including features such as continuous monitoring, drift detection, periodic rescans, OAuth and identity inventory, and the executive reports and Deliverables produced by the Service.
• Order means the order form, signup record, Statement of Work, or other written or electronic record that sets out the scope, tier, fees, and term of your Subscription. For self serve Subscriptions, the Order is the signup record and active configuration in your FailSafe Portal account.
• Customer Data means any data or information submitted to the Service by Customer, or accessed by the Service through API connections authorized by Customer.
• Deliverables means the reports, documentation, runbooks, and other outputs produced by the Service for Customer.
• Channel Partner means a managed service provider, independent IT consultant, or similar third party that engages OptiFlow Labs on behalf of an end client.

02The Service

How FailSafe is delivered

FailSafe is an IT business continuity platform that discovers, documents, and helps protect the systems that organizations depend on. The Service is delivered in two complementary forms.

FailSafe Subscription. The Service is delivered as an ongoing Subscription billed on a 12 month term, with monthly or annual payment cycles as elected at signup. The Subscription includes continuous monitoring, periodic rescans, drift detection, OAuth and identity inventory, executive reports, and the other Deliverables described in the Service tier purchased. Subscriptions renew automatically at the end of each 12 month term unless cancelled under Section 12.

Read only API access

The Service uses read only API connections that Customer authorizes to cloud productivity platforms such as Microsoft 365, Microsoft Entra ID, and Google Workspace. OptiFlow Labs does not modify, create, or delete data in Customer's connected environments through the Service.

03Accounts and Authorization

To use the Service, Customer must register an account and provide accurate and current information. Customer is responsible for the security of its account credentials and for all activity conducted under its account, and shall notify OptiFlow Labs promptly of any unauthorized access.

Customer represents that it has the authority to authorize OptiFlow Labs to access the connected systems, and that the individual granting access is a legitimate administrator with authority to do so.

04Fees, Billing, and Payment

Subscription fees

All Subscriptions run on a 12 month term, billed monthly or annually as elected at signup. Subscriptions renew automatically at the end of each 12 month term at the then current rate unless cancelled before the renewal date in accordance with Section 12.

Annual subscriptions

Customers may elect annual billing in lieu of monthly billing at signup or by switching billing cycle at the end of the current term. Annual Subscriptions are paid in full at the start of the 12 month term and renew automatically on each anniversary at the then current annual rate unless cancelled before the renewal date.

Where an annual rate is offered at a discount relative to the equivalent monthly rate (for example, an annual rate that includes one free month), the discount is applied to the term as a whole and is not separable. Cancellation and refund eligibility, including any consideration of mid term termination requests, is governed by the Refunds and Cancellations Policy.

Switching between monthly and annual billing for an active Subscription is supported by contacting billing or through the customer portal accessible from inside the FailSafe Portal account. A switch takes effect at the end of the current 12 month term, after which the Subscription continues at the new billing cycle.

Taxes

Fees are exclusive of all taxes, levies, and duties, which Customer is responsible for paying, except for taxes based on OptiFlow Labs' net income.

Late payment

Invoices are due within 30 days of the invoice date unless otherwise specified in the Order. Past due amounts may accrue interest at the lower of 1.5% per month or the maximum rate permitted by applicable law. OptiFlow Labs may suspend the Service if Customer's account is more than 30 days past due, after providing 10 days written notice.

No refunds

Subscriptions are a 12 month commitment. Except where required by applicable law and except as expressly provided in the Refunds and Cancellations Policy, fees are non refundable and Subscriptions generally cannot be cancelled mid term. Cancelling a Subscription before the end of its term will be reviewed on a case by case basis at OptiFlow Labs discretion as set out in the Refunds Policy. Cancelling at the end of a term stops future renewals but does not refund fees already paid for the current term.

Disputed charges

Customer must notify OptiFlow Labs in writing of any good faith dispute regarding an invoice within 30 days of the invoice date. Amounts not disputed in writing within that period are deemed accepted.

05Acceptable Use

Customer shall not, and shall not permit any user to:

• Use the Service to violate any applicable law or regulation
• Reverse engineer, decompile, or disassemble any part of the Service, except to the extent such restriction is prohibited by applicable law
• Access the Service in order to build a competing product or copy its features
• Use the Service in a manner that could damage, disable, overburden, or impair OptiFlow Labs infrastructure
• Transmit viruses, malware, or other harmful code through the Service
• Attempt to gain unauthorized access to the Service or any related systems or networks
• Resell, sublicense, or redistribute the Service to third parties, except under an authorized Channel Partner agreement
• Use the Service to surveil, harass, or harm any person
• Remove or obscure proprietary notices from the Service or Deliverables
• Use the Service to process personal data in a manner that violates applicable privacy laws

06Customer Data and Privacy

Privacy Policy

Our collection and use of personal information is governed by our Privacy Policy, which is incorporated into these Terms by reference.

Ownership of Customer Data and Deliverables

As between the parties, Customer retains all right, title, and interest in Customer Data and in the Deliverables produced for Customer. OptiFlow Labs does not claim ownership of either.

License to OptiFlow Labs

Customer grants OptiFlow Labs a limited, non exclusive, non transferable license to access, process, and use Customer Data solely to provide the Service, generate Deliverables, support Customer, and as otherwise permitted by the Privacy Policy.

Aggregated and anonymized data

OptiFlow Labs may use aggregated and anonymized data derived from the Service for internal research, product improvement, and industry benchmarking. Aggregated data does not identify Customer or any individual.

07Intellectual Property

OptiFlow Labs IP

The Service, including all software, models, methodologies, templates, documentation, and the FailSafe and OptiFlow Labs names and logos, is the property of OptiFlow Labs LLC or its licensors. Except for the limited rights expressly granted in these Terms, no rights are granted to Customer in any OptiFlow Labs IP.

License to Deliverables

Upon payment of the applicable fees in full, OptiFlow Labs grants Customer a perpetual, worldwide, non exclusive, royalty free license to use the Deliverables for Customer's internal business operations and for lawful purposes related to Customer's IT continuity, posture, and risk management.

Feedback

If Customer provides feedback, suggestions, or ideas about the Service, Customer grants OptiFlow Labs a perpetual, irrevocable, worldwide, royalty free license to use such feedback for any purpose, without attribution or compensation.

08Confidentiality

In the course of the Service, each party may disclose confidential information to the other. Confidential information includes business plans, technical information, Customer Data, pricing, and any other information marked or reasonably understood to be confidential.

The receiving party shall protect the disclosing party's confidential information using at least the same degree of care it uses to protect its own confidential information of like importance, and in no event less than a reasonable standard of care.

Confidentiality obligations do not apply to information that is publicly known through no fault of the receiving party, independently developed by the receiving party without use of the disclosing party's confidential information, rightfully received from a third party without restriction, or required to be disclosed by law or court order (provided the receiving party gives prompt notice to the disclosing party where legally permitted).

09Service Availability and Beta Features

Commercially reasonable efforts. OptiFlow Labs will use commercially reasonable efforts to make the Service available and operational. The Service may be temporarily unavailable due to maintenance, upgrades, or circumstances beyond our reasonable control.

No uptime guarantee. Unless a specific service level agreement is included in the Order, the Service is not offered with a formal uptime or response time guarantee.

Beta features. From time to time OptiFlow Labs may offer features designated as "Beta," "Preview," "Alpha," or similar. Beta features are provided AS IS, without warranty, and may be modified, suspended, or discontinued at any time without notice. Customer's use of Beta features is voluntary.

10Third Party Services

The Service integrates with third party platforms, including Microsoft 365, Microsoft Entra ID, and Google Workspace. Customer's use of those platforms is governed by the applicable agreements between Customer and those third parties. OptiFlow Labs is not responsible for the availability, accuracy, or functionality of third party services.

If a third party platform restricts, removes, or changes API access used by the Service, the affected functionality may be suspended or modified. OptiFlow Labs will provide reasonable notice where feasible.

11Channel Partners

Where Customer engages with OptiFlow Labs through a Channel Partner, the Partner is responsible for Customer's relationship with OptiFlow Labs, including onboarding, billing, and day to day support, under the terms of the agreement between Customer and the Partner.

Channel Partners may access Customer Data and Deliverables in the course of providing the Service. By engaging through a Channel Partner, Customer authorizes such access.

12Term and Termination

Subscription cancellation

All Subscriptions are a 12 month commitment. Either party may cancel a Subscription by providing at least 30 days written notice before the end of the then current 12 month term. Cancellation takes effect at the end of the current term. Fees already paid for the current term are not refunded. Mid term cancellation requests are reviewed on a case by case basis at OptiFlow Labs discretion as set out in the Refunds and Cancellations Policy.

Termination for cause

Either party may terminate these Terms or any Subscription if the other party materially breaches these Terms and fails to cure the breach within 30 days after receiving written notice describing the breach in reasonable detail.

Immediate suspension

OptiFlow Labs may suspend or terminate the Service immediately, without prior notice, if Customer violates Section 5 (Acceptable Use) or fails to pay amounts more than 60 days past due.

Effect of termination

• Customer's right to access the Service ends
• OptiFlow Labs will revoke the API connections configured under Customer's authorization
• Outstanding fees owed become immediately due and payable
• OptiFlow Labs will, upon Customer's written request within 30 days of termination, return or delete Customer Data in accordance with the Privacy Policy
• Sections that by their nature survive termination shall survive, including those relating to fees owed, intellectual property, confidentiality, warranty disclaimers, limitation of liability, indemnification, and dispute resolution

13Warranty Disclaimer

The Service is provided "AS IS" and "AS AVAILABLE." To the maximum extent permitted by applicable law, OptiFlow Labs disclaims all warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, title, non infringement, and any warranties arising from course of dealing or usage of trade.

OptiFlow Labs does not warrant that the Service will be uninterrupted, error free, completely secure, or that it will identify every risk, vulnerability, misconfiguration, or issue in Customer's environment. The Service is a tool to assist Customer in understanding its IT environment and is not a substitute for Customer's own judgment, governance, policies, or security controls.

14Limitation of Liability

Cap on damages. To the maximum extent permitted by law, the total aggregate liability of each party arising out of or relating to these Terms or the Service shall not exceed the total fees paid by Customer to OptiFlow Labs in the twelve months preceding the event giving rise to the claim.

No indirect damages. In no event shall either party be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, including loss of profits, loss of revenue, loss of goodwill, business interruption, or loss or corruption of data, even if the party has been advised of the possibility of such damages.

Carve outs. The limitations in this Section 14 do not apply to (a) Customer's payment obligations, (b) either party's indemnification obligations, (c) a party's gross negligence or willful misconduct, or (d) either party's infringement of the other's intellectual property rights.

Basis of the bargain. Customer acknowledges that the limitations in this Section 14 are a fundamental element of the basis of the bargain, and that the fees charged for the Service reflect these limitations.

15Indemnification

By Customer. Customer shall defend, indemnify, and hold harmless OptiFlow Labs LLC and its officers, employees, and agents from any third party claim, demand, action, or liability (including reasonable attorneys' fees) arising out of or relating to (a) Customer's violation of these Terms, (b) Customer's violation of any applicable law, (c) Customer's failure to obtain necessary authorizations for API access, or (d) any Customer Data or Customer's use of the Deliverables.

Procedure. The indemnifying party shall control the defense, provided that the indemnified party may participate with counsel of its choice at its own expense. The indemnifying party shall not settle any claim without the indemnified party's consent, which shall not be unreasonably withheld.

16Governing Law and Dispute Resolution

Governing law

These Terms are governed by the laws of the State of California, without regard to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Informal resolution

Before initiating a formal dispute, the parties shall attempt in good faith to resolve any dispute informally by negotiation. Either party may initiate this process by sending written notice describing the dispute to the other party.

Binding arbitration

If a dispute is not resolved informally within 30 days of the notice, any controversy or claim arising out of or relating to these Terms or the Service shall be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules in effect at the time the arbitration is initiated. The arbitration shall be conducted in San Diego, California, before a single arbitrator. Judgment on the arbitrator's award may be entered in any court of competent jurisdiction.

Class action waiver

Each party may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative proceeding. No arbitration under these Terms shall be consolidated or joined with any other arbitration without the written consent of all parties.

Equitable relief

Notwithstanding the arbitration agreement above, either party may seek injunctive or other equitable relief in the state or federal courts located in San Diego County, California, to protect its intellectual property or confidential information from actual or threatened misappropriation or infringement.

Time limitation

Any claim arising out of or relating to these Terms or the Service must be filed within one year after the cause of action accrued, or such claim shall be permanently barred, to the maximum extent permitted by applicable law.

17Modifications to These Terms

We may update these Terms from time to time. When we make material changes, we will provide at least 30 days advance notice by email to Customer's primary contact or by posting a prominent notice on the Service. Non material changes (such as clarifications, typo fixes, or updated references) may take effect upon posting.

Continued use of the Service after the effective date of updated Terms constitutes acceptance of the updated Terms. If Customer does not agree to the updated Terms, Customer's sole remedy is to cancel the Service as described in Section 12.

18Miscellaneous

Entire agreement

These Terms, together with the Privacy Policy and any applicable Order, constitute the entire agreement between the parties regarding the Service and supersede all prior or contemporaneous agreements or understandings, whether written or oral. In the event of a conflict, the Order governs for the scope, fees, and term of the specific engagement, and these Terms govern all other matters.

Severability

If any provision of these Terms is held invalid or unenforceable by a court or arbitrator of competent jurisdiction, the remaining provisions shall remain in full force and effect, and the invalid or unenforceable provision shall be reformed to the minimum extent necessary to make it enforceable and consistent with the parties' original intent.

Waiver

No waiver of any term of these Terms shall be effective unless in writing and signed by the waiving party. Failure or delay by either party to enforce any provision shall not constitute a waiver of that provision.

Assignment

Customer may not assign these Terms, in whole or in part, without OptiFlow Labs' prior written consent, except to a successor in connection with a merger, acquisition, or sale of substantially all assets, provided that the successor assumes all obligations under these Terms. OptiFlow Labs may assign these Terms without restriction upon notice to Customer.

Force majeure

Neither party is liable for any delay or failure in performance caused by events beyond its reasonable control, including natural disasters, acts of war or terrorism, pandemic, government action, labor disruption, failure of power or telecommunications, or outages of third party services, provided that the affected party gives prompt notice and uses reasonable efforts to mitigate.

Independent contractors

The parties are independent contractors. These Terms do not create a partnership, joint venture, agency, franchise, or employment relationship between the parties.

Notices

Legal notices to OptiFlow Labs must be sent to legal@optiflowlabs.ai. Notices to Customer will be sent to the primary contact email on file in Customer's account.

Export compliance

Customer shall comply with all applicable export, sanctions, and trade control laws. Customer shall not export, re export, or provide access to the Service to any country, person, or entity prohibited by such laws.

U.S. government users

The Service and Deliverables are commercial products. If Customer is a U.S. federal, state, or local government entity, Customer's use is subject to these Terms, and any provisions inconsistent with federal or state procurement law may be negotiated in the applicable Order.

19Contact

If you have questions about these Terms or need to send a legal notice, please contact us.