1. INTRODUCTION:

Welcome to Fract! These Terms of Service (“Terms”) form a binding agreement between you (the “Customer”) and Fract, Inc. (“Fract,” “we,” “us,” or “our”). By accessing or using Fract’s platform and services (collectively, the “Services”), or by clicking an acceptance button or signing an order form referencing these Terms, you agree to be bound by this agreement. If you are using the Services on behalf of a company or other legal entity, you represent that you have authority to bind that entity to these Terms, in which case “you” or “Customer” will refer to that entity. Do not use the Services if you do not agree to these Terms.

These Terms, together with any Order Forms or subscriptions you execute with Fract (which are incorporated by reference), constitute the entire agreement between you and Fract regarding the Services. Any other communications or agreements (including any legacy terms from 2014) are superseded and have no effect. We may update these Terms from time to time. If we make material changes, we will notify you (for example, by email or through the platform) and give you an opportunity to review the revised terms before they become effective. By continuing to use the Services after updates, you accept the revised Terms.

2. SCOPE OF SERVICES:

Fract provides a subscription-based, cloud-hosted software platform for data visualization and analytics, along with related support services (the “Platform” or “Services”). The specific features and functionality of the Services are described on our website or in your Order Form. Fract may modify or update the Services from time to time (for example, by adding or removing features, or releasing new versions) to improve the customer experience or to comply with legal requirements. Customer acknowledges that Fract may change the features and capabilities of the Services during the subscription term, and Fract will provide notice of any material deprecation of features.

Fract will use commercially reasonable efforts to make the Services available and to minimize any disruption, error, or inaccessibility of the Services. However, you understand that occasional downtime may occur. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond our control. Fract will try to give advance notice of any scheduled service interruption. Support for the Services (if included in your plan or Order Form) will be provided in accordance with Fract’s support policy or as otherwise agreed in writing.

Beta Features: From time to time, Fract may invite you to try beta or early-access features of the Services which are still under development (“Beta Services”). Beta Services are optional and provided “AS IS” for evaluation only, without warranties of any kind (they may be incomplete or contain bugs). Fract makes no promises that Beta Services will be made generally available and reserves the right to modify or discontinue Beta Services at any time. We strongly recommend against using Beta Services for production or sensitive data.

3. LICENSE GRANT AND ACCESS RIGHTS:

Subject to your compliance with these Terms and payment of applicable fees, Fract grants you a limited, non-exclusive, non-transferable right and license to access and use the Fract Platform and Services during your subscription term, solely for your internal business purposes. This license is worldwide (except as limited by applicable law or export rules) and allows your authorized employees or end-users (“Authorized Users”) to use the Services on your behalf. All rights not expressly granted to you are reserved by Fract and its licensors. You agree that you will use the Services only as permitted by these Terms and any applicable laws or regulations.

Accounts and Credentials: You may need to register for an account to use the Services. You agree to provide accurate, current, and complete information when registering and to keep your account information updated. You are responsible for maintaining the confidentiality of your account login credentials and for all activities that occur under your account. You will promptly notify Fract of any unauthorized use of your account or any other breach of security. Fract is not liable for any loss or damage arising from your failure to protect your account or password.

Fract may, at its sole discretion, impose reasonable restrictions on use of the Services (for example, API call limits or storage limits) to ensure optimal performance for all customers. We will notify you of such limits in the applicable documentation or Order Form. If your usage exceeds agreed limits or materially violates normal use patterns, we will work with you to resolve the situation, but if excessive use persists, Fract reserves the right to suspend or limit your access until you comply with usage limits.

4. ACCEPTABLE USE POLICY:

You agree to use the Services responsibly and refrain from any misuse. Customer and its Authorized Users shall NOT:

Illegal Conduct: Use the Services to upload, store, or transmit any content that is unlawful, harmful, threatening, defamatory, obscene, harassing, or objectionable (including content that is hateful or violates the rights of others). This also means you will not use the Services to violate any law or regulation, including privacy laws or export control laws.

Unauthorised Access and Security: Attempt to gain unauthorized access to the Services or circumvent any security or access controls. You will not probe, scan, or test the vulnerability of any system or network of Fract, or attempt to breach our security or authentication measures.

Intellectual Property Violations: Upload or transmit any content to the Platform that you do not have a right to use, or that infringes the intellectual property or proprietary rights of any third party. This includes pirated software, copyrighted material (unless you have permission), or trademarks you don’t own.

Malicious Code: Introduce any viruses, worms, Trojan horses, malware, or any other harmful code into the Services, or use the Services to distribute malicious code. You must not perform any activity that interferes with or disrupts the integrity or performance of the Services or the data contained therein.

Spam and Abuse: Use the Services to transmit unsolicited commercial emails, spam, junk mail, chain letters, phishing or other fraudulent messages. You will not use the Services for mass automated inquiries or generate artificial traffic, or otherwise exploit the platform in a manner not intended.

Personal Data and Sensitive Use: Except as permitted in a separate data processing agreement with Fract, you will not use the Services to collect, process, or store sensitive personal data (such as health information, credit card numbers, or other sensitive personal identifiers) that would impose specific data security legal obligations on Fract beyond standard business data. You also agree not to use the Services for any activity where the failure of the Services could lead to death, personal injury, or severe property or environmental damage (such as operating medical or emergency services, or other inherently dangerous operations).

Interference with Others: Engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by Fract, may harm Fract or users of the Services or expose them to liability. This includes attempting to overload the system or using the Services in a manner that interferes with or disrupts the Services for other users (e.g., deliberate network attacks or abusive scripting).

Fract reserves the right (but does not assume the obligation) to monitor your use of the Services and any content submitted by you to ensure compliance with these Terms. We may suspend or terminate access for any user who is found to be engaging in any prohibited conduct or otherwise violating this Acceptable Use Policy, and may remove any offending content, at our sole discretion. Fract shall have no liability for any removal of Customer content or suspension of Services taken in good faith to enforce these rules.

5. INTELLECTUAL PROPERTY AND DATA OWNERSHIP:

5.1 Fract’s Intellectual Property: As between the parties, Fract retains all right, title, and interest (including all intellectual property rights) in and to the Services, the Platform, the software, documentation, Fract’s trademarks, logos, and any technology, materials or content provided by Fract under these Terms (“Fract Technology”). The Fract Platform and Services, and all copies or portions thereof, are Fract’s proprietary information and trade secrets. Customer acknowledges that it is not acquiring any rights to the Fract Technology or related intellectual property except for the limited use rights granted in Section 3 above. Fract does not transfer any ownership rights in the Services or software to you. This agreement is not a sale of any software or intellectual property. You agree not to remove or obscure any copyright, trademark, or other proprietary notices on any Fract materials. If you provide any suggestions, feedback, or ideas to Fract regarding the Services (“Feedback”), you grant Fract a worldwide, irrevocable, royalty-free license to use and incorporate that Feedback into the Services or our business operations without restriction; however, providing Feedback is optional.

5.2 Customer Data: “Customer Data” means any data, content, files, or materials that you or your Authorized Users upload into the Fract Services or that you otherwise provide to Fract for processing, hosting, or analysis. Ownership of Customer Data. As between you and Fract, you retain all right, title, and interest in and to your Customer Data, including any intellectual property rights therein. Fract does not claim ownership of your data. Fract acknowledges that any Customer Data you share with Fract during your use of the Services is your intellectual property, and Fract has no proprietary rights in that data.

License to Customer Data: You grant Fract a worldwide, non-exclusive, royalty-free, limited license to host, copy, transmit, display, and process your Customer Data only as necessary to provide the Services and fulfill our obligations under these Terms, and for no other purpose except as permitted by this Agreement or as otherwise expressly agreed by you. This means we may also use your Customer Data to troubleshoot, secure, and improve the Services (for example, to generate usage statistics or to incorporate learning that improves our analytics algorithms), or to comply with legal requirements. Fract will not use or disclose your Customer Data outside of the scope of the Services without your consent, and specifically will not use your data for any advertising or marketing purposes without authorization.

Aggregated Data: You agree that Fract has the right to collect and create data related to the use and performance of the Services (such as usage analytics and trends) and to aggregate and anonymize Customer Data (“Aggregated Data”). Such Aggregated Data will not identify you or any individual and is not considered personal data. Fract retains all rights, title, and interest in any Aggregated Data or derived data that it creates, and may use such data for its own legitimate business purposes (such as improving the Services, benchmarking performance, and publishing reports on usage trends) provided that no Customer specific Confidential Information is disclosed.

Protection of Customer Data: We will maintain administrative, physical, and technical safeguards designed to protect the security and integrity of Customer Data and to guard it against unauthorized access or use. Our security measures include industry-standard practices (such as encryption of data in transit, access controls, and regular backups). However, you acknowledge that, despite these measures, no cloud service can be guaranteed to be completely secure or error-free. You are responsible for maintaining appropriate backups of your data. In the event of any data breach or security incident involving your Customer Data, Fract will notify you as required by law and will cooperate with you in taking any measures reasonably necessary to investigate and mitigate the issue.

No Sensitive Data Without Consent: You agree not to upload or provide any Customer Data that is highly sensitive (for example, personal health information, social security numbers, payment card data, or information subject to special governmental security regulations) unless you have entered into a separate agreement with Fract specifically permitting the use of such data. Fract is not a Business Associate as defined under HIPAA, and the Services are not designed to process protected health information or similarly regulated data without prior arrangement. Upon termination or expiration of your subscription, Fract will delete or return Customer Data in accordance with Section 11 (Termination) below.

6. FEES AND PAYMENT TERMS:

Subscription Fees: The Services are provided on a subscription basis. You agree to pay all fees specified in your Order Form or pricing plan. Subscription fees are typically charged on a monthly or annual basis in advance (as set forth in your plan or order). Unless otherwise stated in an Order Form, fees are quoted and payable in United States dollars. Billing will commence on the start date of your subscription (or, for an upgrade, on the date of the upgrade) and will continue on a recurring basis for each billing period until the Services are canceled or terminated.

Auto-Renewal: Subscriptions will automatically renew at the end of each subscription term for an additional term equal to the expiring term (e.g., a monthly term will renew for one month; an annual term for one year) unless either party gives prior notice of non-renewal. If you do not wish for your subscription to auto-renew, you must cancel the Services before the end of your then-current term in accordance with Section 11 (Termination) below. We may send a reminder or invoice before renewal, but it is ultimately your responsibility to note the renewal date. Upon renewal, we will charge your payment method on file the applicable subscription fees for the renewal term, unless you have canceled the Service in advance.

Payment Methods: You must provide a valid payment method (such as a credit card or approved invoice arrangement) to pay for the Services. By providing such payment information, you authorize Fract (and its third-party payment processor) to charge the subscription fees and any applicable taxes to your payment method. If you are on an invoicing plan, payments are due within 30 days of the invoice date, unless specified otherwise in an Order Form. Late Payments may accrue interest at the rate of 1.5% per month (or the highest rate allowed by law, if lower) from the payment due date until paid. We reserve the right to suspend or terminate your access to the Services if any payment is past due and you fail to cure the non-payment within ten (10) days of our notice to you. You will be responsible for any reasonable attorneys’ fees and collection costs that Fract incurs in collecting any late payments.

Taxes: Our fees do not include any taxes, levies, duties or similar governmental assessments (including, for example, sales, use, value-added or withholding taxes) that may be applicable to your purchase. You are responsible for paying all such taxes associated with your purchases under these Terms, excluding taxes based on Fract’s net income. If Fract has a legal obligation to pay or collect taxes for which you are responsible, we will add the appropriate amount to your billing statement and you agree to pay such amount, unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority. You agree to indemnify and hold Fract harmless from any deficiencies, interest, or penalties imposed on Fract if your purchases are subject to tax withholding or if you fail to pay applicable taxes.

Fee Changes: Fract may modify the subscription fees or introduce new fees for the Services in subsequent subscription terms. If we change the fees or charges for your Services, we will give you advance notice of those changes (e.g., via email or in-product notification) at least 30 days before the end of your current subscription term. The new fees will apply at the start of the next renewal term. If you do not agree to the fee changes, you may choose to cancel the Services at the end of your current term (prior to the renewal date) and avoid incurring the new fees. Continued use of the Services into the renewal term will constitute acceptance of the new pricing. Fee reductions or promotional discounts may be implemented by Fract without prior notice.

No Refunds: All payments are non-refundable, except to the extent required by law. This means that if you cancel the Services before the end of a billing period, or if you downgrade your plan, Fract is not obligated to provide a refund or credit for any unused time or features within the subscription period (unless otherwise stated in an Order Form or required by applicable law). In the event of termination for cause by you (due to our uncured material breach), you may be entitled to a pro-rata refund of any pre-paid fees for the remaining portion of your term.

Trials and Free Plans: If you are using a free trial or free version of the Service, you will not be charged during the trial or free period. Each customer is limited to one free trial unless otherwise permitted by Fract. At the end of a trial, if you have not chosen a paid plan, your access may revert to a limited free plan (if available) or be suspended. Any Customer Data you input during a free trial may be lost unless you transition to a paid subscription.

7. CONFIDENTIALITY:

Each party (“Receiving Party”) may receive or have access to certain non-public information and materials about the other party (“Disclosing Party”) that are identified as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information includes, without limitation, business plans, product roadmaps, customer data, financial data, software (including the Services, in the case of Fract), algorithms, trade secrets, know-how, and any other information that is not generally known to the public. Customer’s Confidential Information includes Customer Data. Fract’s Confidential Information includes the Services and any pricing or technical information about the Services.

Obligations: The Receiving Party agrees to use the Disclosing Party’s Confidential Information solely for the purpose of fulfilling its obligations or exercising its rights under these Terms, and not for any other purpose. The Receiving Party shall not disclose or make available any Confidential Information of the Disclosing Party to any third party except to its own employees or contractors who need to know the information for the authorized purpose and who are bound by confidentiality obligations at least as protective as those herein. In any event, the Receiving Party is responsible for its representatives’ compliance with these confidentiality obligations and will ensure they do not use or disclose Confidential Information in an unauthorized manner. The Receiving Party must protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own confidential information of a similar nature, but in no case less than reasonable care.

Exclusions: Confidential Information does not include information that the Receiving Party can demonstrate: (a) is or becomes publicly known through no wrongful act of the Receiving Party; (b) was known to the Receiving Party without confidential restriction prior to disclosure by the Disclosing Party; (c) was or is independently developed by the Receiving Party without use of any of the Disclosing Party’s Confidential Information; or (d) is lawfully obtained from a third party who has the right to disclose it without restriction.

Compelled Disclosure: If the Receiving Party is compelled by law, regulation, or court order to disclose Confidential Information of the Disclosing Party, it shall provide prompt advance notice to the Disclosing Party (if legally permitted) and reasonably cooperate, at the Disclosing Party’s expense, in any effort to contest or limit the disclosure. Any disclosure made pursuant to a legal requirement shall not be considered a breach of this Section, provided the Receiving Party only discloses the portion of Confidential Information that it is legally required to disclose.

Return or Destruction: Upon termination of the Agreement (or earlier, upon the Disclosing Party’s request), the Receiving Party will return or securely destroy all Confidential Information of the Disclosing Party in its possession, and delete any archived or cached copies, except as required to be retained for legal or compliance purposes. If technically and legally feasible, upon request the Receiving Party will certify in writing that it has complied with the foregoing. Notwithstanding the foregoing, Fract may retain copies of Customer’s Confidential Information (including Customer Data) as necessary to comply with legal obligations, for internal backup and business continuity purposes, or as otherwise permitted by Section 5 (Data). Any retained Confidential Information remains subject to the confidentiality obligations hereunder. This Section 7 will survive for 3 years after termination of the Terms, or indefinitely with respect to any trade secrets and Customer Data that is not returned or deleted.

8. WARRANTIES AND DISCLAIMERS:

Mutual Authority Warranty: Each party represents and warrants that it has the full power and authority to enter into these Terms and that doing so will not conflict with any other agreement to which it is a party. Customer further represents that it is a business entity (or acting on behalf of one) and not an individual consumer, and that it will use the Services for business purposes only.

Fract’s Warranties: Fract warrants that during the term of your paid subscription, the Services will perform in all material respects as described in the applicable documentation or service description. In the event of any material failure of the Services to conform to this warranty, Fract will use reasonable efforts to correct the issue or provide a workaround, or if Fract is unable to do so within a reasonable time, you may terminate the affected Services and receive a pro-rata refund for the unused portion of prepaid fees for that Service. This is your sole and exclusive remedy, and Fract’s sole liability, for breach of the warranty in this paragraph. Fract also warrants that it will provide the Services in a manner consistent with generally accepted industry standards and that it will not knowingly introduce viruses or malicious code into the Services.

Customer’s Warranties: You warrant that you have the rights and permissions to use and submit all Customer Data you upload to the Services, and that Fract’s use of such data as permitted under these Terms will not violate any intellectual property, privacy, or other rights of any third party. You further represent and warrant that you will use the Services in compliance with all applicable laws and regulations.

DISCLAIMERS: Except for the express warranties stated above, to the maximum extent permitted by law Fract disclaims all other warranties and conditions, express or implied, including any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The Services, including all server and network components, are provided “AS IS” and “AS AVAILABLE” with no guarantee that they will be uninterrupted, error-free, or completely secure. Fract and its affiliates, suppliers, and licensors do not make any representation or warranty that (a) the Services will meet your requirements or expectations; (b) the Services will be timely, uninterrupted or free from errors or viruses; or (c) any results or information obtained from the use of the Services will be accurate, reliable, or complete. You assume all risk for any actions taken based on information obtained from the Services. No advice or information (whether oral or written) obtained from Fract or through the Services shall create any warranty not expressly stated in these Terms.

Beta Services and Free Services (if any) are provided “AS-IS” without any warranties whatsoever. We specifically disclaim liability for Beta or experimental features: you understand they might be unpredictable or unavailable, and any use of them is at your sole risk.

Some jurisdictions do not allow the exclusion of certain warranties, so to that extent, some of the above disclaimers may not apply to you. In such cases, the duration of any legally required warranty is limited to 30 days from the start of the warranty period, unless a shorter period is allowed by law.

9. LIMITATION OF LIABILITY:

Indirect Damages: To the fullest extent permitted by law, neither party will be liable to the other party for any indirect, incidental, special, consequential, or punitive damages, or for any loss of profits, revenue, data, goodwill, or business interruption, arising out of or related to the Services or these Terms, even if advised of the possibility of such damages. This exclusion of liability includes any damages caused by mistakes, omissions, interruptions, delays, errors, defects, or computer viruses and any failure of performance, whether or not caused by events beyond Fract’s reasonable control, such as acts of God, communications failure, theft, destruction, or unauthorized access to Fract’s records, programs, or Services.

Direct Damages Cap: In no event will either party’s total cumulative liability for all claims arising out of or relating to these Terms or the Services exceed the total amount of fees actually paid by Customer to Fract for the Services in the 12 months immediately preceding the event giving rise to the liability. If no fees have been paid (for example, if you are on a free plan), Fract’s liability shall not exceed US $100. The existence of multiple claims will not enlarge this limit.

Scope: The limitations and exclusions of liability in this Section 9 apply regardless of the theory of liability (contract, tort, negligence, strict liability, by statute, or otherwise) and whether the harmed party was advised of the possibility of such damages. Exception: Notwithstanding the foregoing, nothing in these Terms limits or excludes liability for gross negligence, willful misconduct, or fraud, or for death or personal injury caused by negligence to the extent that liability cannot be excluded or limited by law. Additionally, the above limitations do not limit Customer’s obligation to pay accrued fees or any amounts due to Fract under these Terms.

Allocation of Risk: Both you and Fract agree that the waivers and limitations of liability in this Section are a reasonable allocation of risk and an essential part of the bargain between the parties, without which Fract would not be able to offer the Services under the terms provided. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations may not apply to you to the extent prohibited by law. In such cases, liability will be limited to the maximum extent permitted by applicable law.

10. TERM AND TERMINATION:

Term: These Terms are effective as of the date you first accept them (either by signing an Order Form, clicking “I Agree,” or by using the Services) and will remain in effect for as long as you have an active subscription or account with Fract, unless terminated earlier in accordance with this Section.

Termination for Convenience: Either party may decide not to renew a subscription term by providing notice to the other party before the end of the then-current term (see Section 6 on Auto-Renewal). You may also terminate these Terms at any time by canceling your account or subscription through the Services or by providing written notice to Fract (email is acceptable). If you terminate for convenience, you will not be entitled to any refund of prepaid fees (except as required by law), and you must stop using and accessing the Services as of the termination effective date.

Termination for Cause: Either party may terminate these Terms (including any active subscriptions) immediately upon written notice to the other party if the other party commits a material breach of these Terms and fails to cure that breach within thirty (30) days after receiving written notice describing the breach. For example, your failure to pay fees when due, or Fract’s misuse of your Customer Data, could qualify as material breaches that may trigger a termination if not timely cured. If a breach is incapable of cure, the non-breaching party may terminate immediately upon notice. Fract may also terminate these Terms immediately if you become insolvent, file for bankruptcy, or undergo any other proceeding relating to insolvency, receivership, or assignment for the benefit of creditors.

Additionally, Fract reserves the right to suspend or terminate your access to the Services (in whole or in part) with or without notice if: (a) required by law or court order; (b) your use of the Service poses a security risk to the Service or any other customer; (c) you are using the Service for fraudulent or illegal activities; or (d) you are in breach of the Acceptable Use Policy or are otherwise misusing the Service in a way that could harm Fract or others. We will endeavor to give advance notice and an opportunity to cure (if feasible) before such a suspension or termination, but our primary responsibility is to protect the integrity and security of the Services and other users.

Effect of Termination: Upon termination or expiration of your subscription or these Terms for any reason: (i) Access Revocation: your rights to access and use the Services will immediately terminate, and Fract may disable your accounts and access credentials; (ii) Payment Obligations: you will immediately pay all outstanding fees for Services delivered up to the termination date (and, if we terminated for your uncured breach, you will also pay any unpaid fees covering the remainder of your subscription commitment as liquidated damages, since early termination for breach by Customer will not entitle you to any refund); and (iii) Return of Fract Materials: you will destroy or return any Fract property or materials in your possession, including any Fract Confidential Information.

Data Retention and Export: In the event of any termination or expiration, Fract will provide you a reasonable opportunity (at least 30 days unless otherwise required by law) to retrieve your Customer Data from the Service. After such period, Fract may delete or anonymize any Customer Data in the production environment, except that Fract may retain archival copies for legal, audit, or backup purposes. Fract is not liable for any deletion of Customer Data in accordance with this Agreement, so please ensure you export your data prior to the conclusion of the retention period.

Survival: Any provisions of these Terms that by their nature should survive termination (such as confidentiality, disclaimers, limitations of liability, accrued rights to payment, and provisions that protect ownership of intellectual property) shall survive termination or expiration of the Terms.

11. GOVERNING LAW AND DISPUTE RESOLUTION:

Governing Law: These Terms and any dispute arising out of or related to them or the Services will be governed by Delaware state law, U.S.A., without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Good Faith Negotiations: In the event of any controversy or claim arising out of or relating to these Terms or the Services, the parties agree to first attempt to resolve the dispute informally by notifying the other party of the dispute and working in good faith to negotiate a resolution. If we cannot resolve the dispute within a reasonable time (not to exceed 60 days), then, except as provided below, the dispute will be resolved through binding arbitration as described in this Section.

Arbitration Agreement: Any dispute, claim, or controversy arising out of or relating to these Terms or use of the Services that cannot be resolved by negotiation shall be finally resolved by binding arbitration. The arbitration will be administered by JAMS (or its successor) and held in Atlanta Georgia (or another location mutually agreed by the parties) before a single arbitrator, who shall be a retired judge or attorney experienced in software/SaaS disputes. The arbitration shall be conducted in English and in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified in this Section. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

The arbitrator shall have exclusive authority to determine the arbitrability of any dispute, including the scope or enforceability of this arbitration provision, except that a court of competent jurisdiction shall have the authority to determine the question of whether a dispute is subject to the exclusions below. The arbitrator may award any relief or remedies that a court could award, provided that the arbitrator’s decision must be consistent with the provisions of these Terms (including the limitations of liability). The arbitrator shall provide a written reasoned decision explaining the award.

Exceptions: Notwithstanding the foregoing, either party may choose to pursue (a) relief in small claims court for qualifying claims; and/or (b) a lawsuit in court for injunctive or equitable relief to protect intellectual property or Confidential Information, without first engaging in arbitration. Specifically, if your unauthorized use of the Services or infringement of Fract’s intellectual property is causing immediate harm, Fract may seek an injunction from a court to stop you, and similarly you may seek an injunction to prevent unauthorized use of your data or IP. Such actions shall not be deemed a waiver of the right to arbitrate other issues.

Class Action Waiver: All claims must be brought on an individual basis. You and Fract agree not to participate in or seek to consolidate your claim with any class or representative action. The arbitrator shall not consolidate more than one person’s claims and shall not otherwise preside over any form of a representative or class proceeding. Each party expressly waives any right to a jury trial or to participate in a class action lawsuit or class-wide arbitration. If this class action waiver is found unenforceable, then the entirety of the arbitration agreement will be null and void, and the dispute must be brought in court (with the class issue resolved by a court).

Arbitration Fees and Costs: The JAMS filing fee and arbitrator’s fees will be shared equally between the parties, unless applicable JAMS rules or law require a different allocation. Each party shall bear its own attorneys’ fees and costs unless the arbitrator, applying applicable law, awards attorney’s fees to the prevailing party (e.g., if the arbitrator finds a claim frivolous, they may award fees to the other side).

Confidentiality of Proceedings: The arbitration (including the hearing, evidence, and award) shall be confidential and no party will disclose any information about the arbitration except as required to enforce the award or as permitted by law.

Opt-Out Right (for new Customers): If you are a new Customer, you may opt out of the arbitration and class action waiver provisions by sending written notice of your decision to opt out to legal@fract.com or to our mailing address (Attn: Legal Department) within 30 days of first accepting these Terms. Your notice must include your name, address, the email associated with your Fract account, and an unequivocal statement that you wish to opt out of arbitration. If you opt out of arbitration, you and Fract agree that all other parts of these Terms still apply to you.

Jurisdiction and Venue for Litigation: In the event the arbitration clause is found unenforceable or if a dispute arises that is excluded from arbitration as per the exceptions above, the parties agree to resolve such dispute exclusively in the state or federal courts located in New Castle County, Delaware. Both you and Fract hereby consent to the personal jurisdiction of those courts and waive any objections to venue in those courts (including any argument that it is an inconvenient forum). The parties expressly agree that the prevailing party in any court action (including any action to compel or enforce arbitration or an award) shall be entitled to an award of its reasonable attorneys’ fees and costs, to the extent allowed by law. This Dispute Resolution section shall survive any termination of the Terms.

12. MISCELLANEOUS:

Assignment: Neither party may assign or transfer these Terms, in whole or in part, to any third party without the prior written consent of the other party, except that Fract may assign this agreement without consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns.

Entire Agreement; Amendments: These Terms (including any Order Form and other documents incorporated by reference, such as a Data Processing Addendum if applicable) constitute the entire agreement between you and Fract regarding the Services, and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral, relating to its subject matter. In the event of a conflict between these Terms and an Order Form, the Order Form will prevail to the extent of the conflict (unless the Order Form expressly states otherwise). These Terms may be amended or modified only by a written document (including a click-through agreement) agreed to by both parties.

No Waiver: A party’s failure or delay to enforce any provision of these Terms will not be deemed a waiver of that party’s rights with respect to that provision or any other provision. No waiver will be effective unless it is in writing and signed by the waiving party. One waiver will not imply any future waiver.

Severability: If any provision of these Terms is held by a court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of these Terms will remain in full force and effect. The parties will, in good faith, negotiate a valid and enforceable provision to replace the invalid one that most closely approximates the original intent and economic effect.

Relationship of the Parties: The relationship between Fract and Customer is that of independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the authority to make any commitments or agreements on behalf of the other.

Third-Party Beneficiaries: There are no third-party beneficiaries to these Terms; the agreement is solely for the benefit of Fract and Customer (and permitted assigns), except that Fract’s affiliates and licensors are intended third-party beneficiaries with respect to the provisions relating to protection of intellectual property and limitation of liability.

Force Majeure: Neither party will be liable to the other for any delay or failure to perform any obligation (except payment obligations) under these Terms if the delay or failure is due to unforeseen events that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, epidemic, failure or diminishment of power or telecommunications or data networks or services, or government act.

Notices: Fract may provide notices to you by email, through your account, or by written communication sent to your address on record. You must send any notices to Fract via email to legal@fract.com (with a copy to support@fract.com) or by postal mail to Fract’s corporate address as listed on our website. Notices will be deemed given (a) in the case of email, on the first business day after sending, and (b) in the case of postal mail, five business days after sending.

Export Compliance: The Services and software may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied party list. You shall not permit users to access or use any Service in an embargoed country or in violation of any U.S. export law or regulation. Specifically, you will not export, re-export, or allow the transfer of the Services or any software or technology in violation of any export restrictions, including U.S. export control laws (for example, to any country subject to U.S. sanctions).

Government Users: If Customer is a U.S. government entity or contractor, the Services are provided as “commercial items” (as defined in 48 CFR §2.101) and with only those rights specified in these Terms, in accordance with 48 CFR §12.212 (for non-defense agencies) and DFAR §227.7202 (for defense agencies).

Contact Information: If you have any questions or concerns about these Terms or the Services, you may contact Fract at info@fract.com.

By using or continuing to use the Fract Services, you acknowledge that you have read, understood, and agree to these Terms of Service. Thank you for choosing Fract for your business needs!