Faros AI - Terms of service

Faros AI, Inc. (“Faros,” “we,” “us,” “our”) provides its products and services through its website located at www.faros.ai (the “Site”) and through its mobile applications and related services (collectively, such products and services, including any new features and applications, the Site, the “Faros Product(s)”), subject to the following Terms of Service (these “Terms” or “Terms of Service” or “TOS”) and the rest of the Agreement as defined below.  For the avoidance of doubt, the Faros Product includes (as applicable) software that is licensed for on-premise use by Customer (“Software”) and/or software that is provided as a service by Faros to Customer (“SaaS Services”).

The entire agreement between you (“Customer,” “you,” “your”) and Faros regarding the Faros Product (“Agreement”) consists of these Terms and Conditions, along with Faros’ then-current Service Levels and Support (SLA) and Privacy Policy (each as referenced below), all order forms (“Order Forms”) between the parties, and any other documents referenced in these Terms or executed by the parties with respect to the Faros Product. If the terms in any of these documents conflict, the order of precedence in interpreting the documents shall be the order in which the documents are referenced in the preceding sentence. This Agreement supersedes all prior and contemporaneous understandings and agreements, whether oral or written.   However, if Customer has a written master services agreement in effect with Faros  with respect to the Faros Products (“MSA”), then the MSA will govern and control over these Terms. 

If you are accepting these Terms of Service on behalf of a company or other legal entity, you represent that you have the legal authority to bind such entity to this Agreement, in which case the term “you” will refer to such entity.  If you do not have such authority, or if you do not agree with this Agreement, you must not accept these Terms of Service and are not permitted to use the Faros Product.

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1. Modifications to These Terms

We reserve the right to modify these Terms of Service in our discretion from time to time and we will either post the modification on the Site or the Faros Product and provide you with email notice of the modification. You should check these Terms of Service periodically for changes. 

Any modification shall be effective immediately upon our posting of modified Terms. You indicate your agreement to comply with, and be bound by, any such modification by continuing to use or access the Faros Product after modified Terms are posted. If the modified Terms are not acceptable to you, your sole recourse is to discontinue your use of the Faros Product.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be negotiated and added to an Order Form with respect to the applicable Faros Product from time to time. All such terms are hereby incorporated by reference into these Terms of Service.

Any different or additional terms of any purchase order or other form provided by Customer to Faros will not have any force or effect.

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2. Provision of Faros Product

2.1 Provision of Faros Product.  Subject to the terms and conditions of this Agreement, during the subscription term set forth in the applicable Order Form (“Subscription Term”), Faros will make the Faros Product available to Customer pursuant to this Agreement, including the SLA and the applicable Order Form, and hereby grants Customer (a) in the case of SaaS Services, a non-exclusive right to access and use the Faros Product, or (b) in the case of a Software license, a non-exclusive license to (i) install, deploy and use the Software (in object code form only) in Customer’s infrastructure (whether owned by Customer or its third party provider), and (ii) make copies of the Software for backup/archival and/or non-production test purposes (provided that all copies retain all notices of proprietary rights included in the original); provided that in case of each of (a) and (b), such rights may be exercised only for Customer’s internal business use in development and management of its software and otherwise subject to any other limitations or restrictions set forth in the Order Form(s) (the “Authorized Use”). You also may download, copy and use the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Faros for the Faros Product (“Documentation”) solely as necessary for your Authorized Use.

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2.2 Customer Data. ‍

1. As used in these Terms, “Customer Data” means i) the data or information uploaded by or on behalf of Customer for processing by the Faros Product and (ii) Customer Output; and “Customer Output” means the non-transitory output specifically related to Customer that is provided to Customer as a result of the processing of Customer Data of the Faros Product. For the avoidance of doubt, however, “Customer Output” does not include any portion of the Faros Product or other Faros Technology, nor does it include the form or format in which data may be displayed after processing by the Faros Product.
2. Customer grants Faros a non-exclusive, worldwide, royalty-free license to access and use the Customer Data in providing the Faros Product to Customer, including providing Customer Output, and in performing support and other services to Customer relating to the Faros Product, and otherwise exercising its rights under this Agreement, including rights relating to Performance Data (as defined below).  

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2.3 Data Security.  

1. Faros will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.  In furtherance of the foregoing, Faros will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the applicable Documentation and Faros’ then-current Data Security Requirements.  Faros’ security safeguards include measures for preventing access, use, modification or disclosure of Customer Data by Faros personnel except (a) to provide the Faros Product and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Customer expressly permits in writing or under this Agreement.  
   

2. Use of any personal data you provide to Faros in connection with this Agreement is subject to Faros’ then-current Privacy Policy.

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2.4 Faros Technology; Customer Limitations.  Faros and its licensors reserve all rights in and to the algorithms, models, modeling techniques, processes, software, content and other information and technology that are part of the Faros Product, that are not expressly granted in this Agreement, as well as all rights in and to the systems, network and infrastructure, that are owned by Faros or licensed from a third party by Faros and used by Faros in connection with this Agreement, as well as Performance Data (“Faros Technology”).  The rights granted herein are subject to the following restrictions (the “License Restrictions”).  Customer will not directly or indirectly:

1. reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Faros Product;

2. attempt to probe, scan or test the vulnerability of the Faros Product, breach the security or authentication measures of the Faros Product without proper authorization or wilfully render any part of the Faros Product unusable, or store or transmit any malicious code;
3. use or access the Faros Product (or, without Faros’ consent, Customer Output) to develop or improve a product, service or technology (such as an artificial intelligence or machine learning model) that is competitive with the Faros Product or other Faros Technology or products or services, or engage in competitive analysis or benchmarking with respect to the Faros Product or other Faros Technology;
4. transfer, distribute, resell, lease, license, or assign Faros Product or otherwise offer the Faros Product on a standalone basis; 
5. use the Faros Product in a manner that infringes or otherwise violates (or to facilitate any violation of) any third party rights or applicable law; or
6. use the Faros Product for any purpose other than the Authorized Use or otherwise use the Faros Product outside the scope expressly permitted hereunder and in the applicable Order Form.

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2.5 Customer Responsibilities.

1. All accounts must be registered by humans and not by bots or other automated means.  If you are an individual, you must be at least the age of legal majority in your country of residence.
2. You acknowledge that Faros’ provision of the Faros Product is dependent on you providing all reasonably required cooperation (including the prompt provision of access to your applications, software systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and you will provide all such cooperation in a diligent and timely manner.
3. You will (i) be responsible for all use of the Faros Product under Customer’s account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Faros Product and notify Faros promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Faros Product, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Faros will have no liability for such failure (including under any service level agreement, if applicable).  In addition, you will be responsible for ensuring that your systems (e.g., APIs) have sufficient bandwidth to use the Faros Product.
4. You warrant that you have all rights necessary to provide any information, data or other materials that you provide hereunder, and to permit Faros to use the same as contemplated hereunder.
5. You will not use the Faros Product to transmit or provide to Faros any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account, passport, visa, or credit card numbers).
6. Customer will defend, indemnify and hold harmless Faros against any claim, demand, suit, or proceeding (“Claim”) made or brought against Faros by a third party arising out of (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Faros Product by Customer not in accordance with this Agreement; (C) modification of the Faros Product by any party other than Faros without Faros’ express consent; (D) Customer Data; or (E) the combination, operation or use of the Faros Product with other applications, portions of applications, product(s) or services where the Faros Product would not by itself be infringing.

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2.6 Suspension.  Faros reserves the right to suspend Customer’s or any user’s use of the Faros Product if Faros reasonably believes that Customer or such user poses a security risk or otherwise if required by applicable law.  If legally permissible, Faros will use reasonable efforts to notify Customer of any such suspension.

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2.7 Host Provider.  If SaaS Services are provided by Faros, then and notwithstanding any other provision of this Agreement, Customer acknowledges that Faros uses a third party provider (currently Amazon Web Services, Inc. (AWS)) for data center services with respect to the SaaS Services (“Host Provider”), and Customer agrees that provisions of this Agreement (including its attachments) relating to confidentiality, security, service level commitments and the like do not apply to the Host Provider, except and to the extent the Host Provider has otherwise agreed to any such terms.

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2.8 Third Party Software.  If the Software is provided, you acknowledge and agree that the Software may be distributed alongside certain third party software (“Third Party Software”) that is provided under separate license terms (the "Third Party Terms"), which is available to Customer upon request. Use of such Third Party Software in conjunction with the Faros Product in a manner consistent with this Agreement is permitted; however, broader rights may be granted under the applicable Third Party Terms, and nothing in this Agreement is intended to impose further restrictions on use of the Third Party Software.  Notwithstanding any other provision of this Agreement, Faros makes no warranties and will have no obligations or liabilities with respect to any Third Party Software.

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2.9 Third Party Sites.  The Faros Product may include or facilitate integrations with third party sites or services.  Faros is not responsible for such sites or services and cannot guarantee your continued and uninterrupted access to, or integration with, them through the Faros Product during the Subscription Term.  Customer acknowledges and agrees that use of such sites and services is subject to the third party’s services terms and privacy policies.

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3. Fees

3.1 Fees. Customer will pay Faros the fees set forth in the Order Form.  Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.

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3.2 Late Payment.  Faros may suspend access to the Faros Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

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3.3 Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Faros.  Customer will not withhold any taxes from any amounts due to Faros.

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4. Confidentiality and Proprietary Rights

4.1 Confidentiality.  

1. You agree that Customer will use any information or data disclosed by Faros that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure (“Confidential Information”) solely in accordance with the provisions of this Agreement and  will not disclose, or permit to be disclosed, Confidential Information directly or indirectly, to any third party without Faros’ prior written consent, except as otherwise permitted hereunder.  However, Customer may disclose Confidential Information (a) to Customer’s employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case Customer will provide Faros with prior written notification thereof, will provide Faros with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.   The foregoing obligations of Customer will not apply to any information which (a) is in the public domain through no fault of Customer; (b) was properly known by Customer, without restriction, prior to disclosure by Faros; (c) was properly disclosed to Customer, without restriction, by another person with the legal authority to do so; or (d) is independently developed by Customer without use of or reference to Faros’ Confidential Information.
2. Faros will treat Customer Data as Customer’s confidential information subject to the terms and conditions of this Agreement, including Faros’ Privacy Policy.

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4.2 Proprietary Rights.  As between the parties, Faros exclusively owns all right, title and interest in and to the Faros Product and other Faros Technology and Faros’ Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data.

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4.3 Feedback.  Customer may from time to time provide Faros suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Faros Product.  Faros will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Faros will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

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4.4 Performance Data.  Customer further agrees that Faros has the right to aggregate, collect and analyze Performance Data and shall be free (during and after the term hereof) to (i) use such Performance Data to improve Faros’ products and services, and (ii) disclose such Performance Data solely in an aggregated and anonymized format that does not identify Customer or any individual.  As used in these Terms, “Performance Data” means (a) any diagnostic and usage-related information from the use, access, performance and operation of the Faros Product by or on behalf of Customer, including any statistical or other analysis, information or data based on or derived from any of the foregoing; and/or (b) any data that is created or derived by Faros or that otherwise results from the processing of Customer Data by the Faros Product, and has been anonymized using technical safeguards and business processes designed to prevent reidentification, such that the anonymized data cannot be reasonably linked to Customer or any particular user.

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5. Disclaimer

5.1 WARRANTY DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, FAROS PROVIDES THE FAROS PRODUCT “AS IS” AND “AS AVAILABLE.”  FAROS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER ACKNOWLEDGES THAT THE FAROS PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S SOFTWARE DEVELOPMENT AND MANAGEMENT.  THE FAROS PRODUCT AND CUSTOMER OUTPUT MAY CONTAIN BUGS AND/OR MAKE ERRORS.  FAROS DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL SOFTWARE DEVELOPMENT ISSUES WILL BE RESOLVED. Customer understands and agrees that Customer must not rely solely on outputs from the Faros Product for critical tasks or decisions or without independently verifying their accuracy, and that Customer is solely responsible for evaluating (including through human review) and determining whether the Customer Output is appropriate for Customer’s circumstances.  No oral or written information or advice given by Faros, its agents or employees will create a warranty or in any way increase the scope of Faros’ liability under this Agreement.

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5.2 BETA PRODUCTS.  FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH FAROS WHERE YOU GET TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY FAROS. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”.  FAROS DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO.  CUSTOMER OR FAROS MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

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6. Limitation of Liability

UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL FAROS BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF FAROS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

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7. Termination

7.1 Term.  The term of this Agreement will commence on the Effective Date of the Order Form and continue for the Subscription Term set forth in the Order Form unless earlier terminated below.  Except as set forth in the Order Form, the Subscription Term will automatically renew for successive renewal terms equal to the length of the initial term of the Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

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7.2 Termination.  Each party may terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 

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7.3 Survival.  Upon termination or expiration of this Agreement: (a) all Customer rights and (except as provided below) Faros’ obligations under this Agreement relating to the Faros Product will immediately terminate;  (b) Customer is no longer authorized to access or use the Faros Product or Customer’s account; and (c) Customer must destroy any and all copies of the Software and any other Faros Technology in Customer’s possession or under its control. Any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

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8. General

8.1 Export Compliance.  Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Faros Product.

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8.2 Publicity.  Faros may use Customer’s name, logo or marks in a listing of Provider’s customers or other marketing materials including Provider’s websites. Customer agrees to serve as a reference account and to participate in case studies and other promotional activity upon successful implementation. 

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8.3 Assignment; Delegation.  Customer may not assign or otherwise transfer this Agreement, in whole or in part, without Faros’ prior written consent.  Any attempted assignment, delegation, or transfer by Customer in violation of the foregoing will be null and void.  Faros may, without your consent, assign and transfer this Agreement and/or delegate any of its obligations to third parties under this Agreement.    Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

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8.4 Waiver.  No waiver of any rights hereunder will be effective unless assented to in writing by the waiving party.  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

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8.5 Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

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8.6 Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

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8.7 Governing Law.  This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

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8.8 Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the parties must be sent to the respective address set forth in the Order Form, or such other address designated pursuant to this Section.

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8.9 Force Majeure.  Faros will not be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

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8.10 Government Terms.  Faros provides the Faros Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Faros Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Faros Product was developed fully at private expense.

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8.11 Interpretation. For purposes hereof, “including” means “including without limitation”. All descriptive headings in this Agreement are for convenience of reference only and will not affect in any way the meaning or the interpretation of this Agreement.