Customer Agreement

This Customer Agreement is between Nitric Pty Ltd ABN 70 647 354 532 ("Suga", "we", "us" or "our") and the purchaser of the Service subscription specified in the Order ("Customer").

1 Service

1.1 Access and use

We grant Customer a non-exclusive and non-transferable right to:

a. access and use the Service; and

b. permit its End Users to access and use the Service,

to connect to, deploy, and manage Kubernetes clusters and deploy Customer Applications to those clusters during the Subscription Term, subject to and in accordance with the Agreement (including any usage limitations specified in the Order).

1.2 Service Restrictions

Customer must not, and must ensure that End Users do not:

a. access, use, or otherwise exploit the Service, except as permitted under clause 1.1;

b. reverse engineer, decompile or disassemble the Service, view or gain access to the source code to the Service, or use the Service to provide any product or service that is an alternative, substitute or competitor to the Service;

c. copy, develop any modification, enhancement, derivative work or other development of the Service or incorporate any Customer, End User or third party material into the Service (except Customer Material as expressly permitted under the Agreement);

d. upload to the Service any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;

e. remove any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Service;

f. access or use the Service by any unauthorised means, including using any bot, script, spider, crawler, scraper, or automated device; or

g. allow any person (other than authorised End Users) to access or use the Service for any purpose without our consent.

1.3 Support Services

Paid subscriptions to the Service include the provision of the Support Services for the duration of the Subscription Term as described on our website. Customer must provide all information and assistance reasonably required by us to perform the Support Services.

1.4 Free use

Customer acknowledges and agrees that any free use of the Service is limited to use of the Service "as is" under our free tier subject to the limitations for that tier specified on our pricing page and excludes all Support Services (other than best-effort support via public channels), Professional Services, warranties, indemnities, obligations and liabilities under the Agreement.

1.5 Pre-Release Periods

Customer acknowledges and agrees that, during any Pre-Release Period:

a. the Service is provided for evaluation and testing purposes only and is not recommended for production workloads or business-critical applications;

b. the Service may contain bugs, errors, defects or harmful components and may not operate as intended;

c. features, functionality, APIs and interfaces may be changed, deprecated or removed without notice;

d. data loss may occur, and Customer is solely responsible for maintaining backups of all Customer Material;

e. Support Services may be limited or unavailable, and response times are not guaranteed;

f. the Service may be suspended, discontinued or terminated at any time without notice; and

g. the limitations, exclusions and disclaimers applicable to free use under clause 1.4 apply to all use during a Pre-Release Period, regardless of whether Customer is on a free or paid subscription.

Customer uses the Service during any Pre-Release Period entirely at its own risk.

1.6 Professional Services

If Customer wishes to purchase Professional Services from us, the parties must agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.

2 Customer responsibilities

2.1 Service dependencies

The functionality of the Service is dependent upon Customer ensuring that:

a. all Customer Applications are properly coded, supported and maintained and free from errors, defects and compatibility issues;

b. the Connected Clusters, Cloud Provider Accounts and any integrated services (including Source Code Repositories and Container Registries) are properly configured and connected to the Service in accordance with our documentation at all times during the Subscription Term;

c. valid and current credentials are provided to the Service for all integrated Cloud Provider Accounts, Source Code Repositories, Container Registries and other third party services; and

d. it obtains and maintains all hardware, software, services and network connectivity necessary to access and use the Service at all times during the Subscription Term.

2.2 Usage responsibilities

Customer uses the Service at its own risk and is solely responsible for:

a. ensuring that the Service is accessed and used strictly in accordance with the Agreement;

b. each act and omission of End Users as though it were an act or omission of Customer;

c. ensuring that Customer's, and each End User's, access and use of the Service, and all Customer Applications deployed through the Service, complies with all applicable laws, regulations and contractual obligations;

d. obtaining all consents, licences and approvals necessary to lawfully Process any Customer Material (including those protected by Intellectual Property Rights, confidentiality or privacy) through the Service;

e. ensuring that each Connected Cluster is secure, scalable, compatible with the Customer Applications and otherwise fit for Customer's requirements;

f. implementing all steps and controls necessary to secure and keep confidential all user credentials issued to Customer and its End Users;

g. all costs, fees and charges payable to Cloud Providers, Container Registry providers and other third party service providers in connection with Customer's use of Connected Clusters and integrated services; and

h. all dealings with its End Users and must ensure that no End User makes any Claim against Suga in connection with the Service, Support Services, Professional Services or the Agreement.

2.3 Third Party Material

The Service may integrate or interoperate with Cloud Provider Accounts, Connected Clusters, Source Code Repositories, Container Registries and other Third Party Material. Customer acknowledges and agrees that:

a. Suga has no control over, and is not responsible for, any Third Party Material;

b. Third Party Material is provided directly to Customer by the relevant Third Party Material provider, does not form part of the Service and is not governed by the Agreement;

c. Customer is solely responsible for entering into, and complying with, its own agreement with each Third Party Material provider necessary for Customer's proposed use of the Service;

d. Customer uses all Third Party Material at its own risk and that (as between Customer and Suga) Customer is solely responsible for all costs, Claims and Losses relating to Third Party Material; and

e. Third Party Material is subject to change, suspension, termination or discontinuation at any time and without notice by the Third Party Material provider (and that this may cause the Service to cease to be compatible).

2.4 Acknowledgement

Customer acknowledges and agrees that Suga is not liable for any failure of the Service or any delay in, or failure to perform, its obligations under the Agreement (or any associated Claims or Losses) to the extent that the delay or failure is caused by:

a. Customer's breach of the Agreement, including its responsibilities under this clause 2; or

b. Customer Material or Third Party Materials.

3 Fees, invoicing and payment

3.1 Fees

Fees are payable for all paid subscriptions to the Service, Support Services and any Professional Services. Unless agreed otherwise in an Order, Suga may increase its Fees at the following times:

a. upon renewal of, or change to, Customer's subscription; and

b. at any other time provided that the increased Fees will only apply to Orders entered into after the date of the Fee increase.

3.2 Usage-based Fees

To the extent that Fees are calculated based on usage metrics (such as compute, memory or storage managed by Connected Clusters), Customer authorises Suga to collect usage data from Connected Clusters for the purpose of calculating Fees. Current usage-based pricing is set out on our pricing page.

3.3 Invoicing and payment

Suga must issue invoices for the Fees to Customer at the times specified in the Order or applicable SOW. Customer must pay all Fees invoiced by Suga, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by Suga are non-cancellable and non-refundable, except as expressly set out in the Agreement.

3.4 Late Payment

If Customer fails to pay any Fees (that are not disputed in good faith) by the due date for payment, Suga may:

a. suspend Customer's right to access and use the Service; and

b. charge interest at a rate of 2 percent per annum above the current published overdraft rate of the Commonwealth Bank of Australia,

in each case, from the due date for payment until the date that payment is made by Customer.

3.5 Verification

Suga may on 14 days' notice conduct an audit of Customer's use of the Service and compliance with the Agreement from time to time during the Subscription Term. Customer must provide all access to its End Users, records, premises and personnel reasonably requested by Suga in connection with any such audit. Suga must bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Service in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Customer must immediately:

a. pay to Suga all additional Fees payable in respect of any excess use (at Suga's then current list prices) in addition to Suga's reasonable audit costs; and

b. take all other steps required to remedy the breach of the Agreement and prevent its recurrence at Customer's own cost.

3.6 Taxes

The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time of payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).

4 Suga Intellectual Property Rights

4.1 Ownership

All Intellectual Property Rights in and to the Service and output of the Support Services and Professional Services, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Service developed by or on behalf of Customer and End Users, vests or remain vested in Suga or its licensors. If any such Intellectual Property Right vests in Customer or End Users, Customer hereby assigns, and must procure that each End User assigns, that Intellectual Property Right to Suga with immediate effect. Customer must take all further steps (including execution of documents) necessary to give effect to this clause.

4.2 No other rights

Neither Customer nor any End User receives any right, title or interest in or to the Service other than the right to access and use it expressly granted to Customer under clause 1.1.

4.3 Notice of infringement

Customer must immediately notify Suga in writing upon becoming aware of any:

a. infringement or unauthorised use of the Service by any person, including any End User; or

b. Claim by any person that use of the Service in accordance with the Agreement infringes the Intellectual Property Rights of any person.

4.4 Remedy

If the Service is the subject of an IP Claim, Suga may (at its cost and option):

a. procure the right for Customer to continue using the Service;

b. modify the Service such that it no longer infringes the relevant Intellectual Property Rights; or

c. terminate the Agreement and provide Customer with a refund of any Fees paid in advance for use of the Service after the effective date of termination.

5 Customer Material

5.1 Ownership

As between Suga and Customer, all rights in and to the Customer Material, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Customer Material developed by or on behalf of Suga, vest or remain vested in Customer at all times. If any Intellectual Property Right in the Customer Material vests in Suga, Suga hereby assigns that Intellectual Property Right to Customer with immediate effect. Suga must take all further steps (including execution of documents) necessary to give effect to this clause.

5.2 Licence

Customer:

a. grants Suga, its sub-processors and their respective personnel a licence to Process the Customer Material (including all Intellectual Property Rights therein); and

b. warrants that it has obtained all consents, licences and approvals from third parties necessary to enable Suga, its sub-processors and their respective personnel to Process the Customer Material,

in each case, as necessary to provide the Service, Support Services, any Professional Services and as contemplated by the Agreement.

6 Privacy and Data

6.1 Privacy

Each party must comply with all Privacy Laws applicable to that party (whether as controller or processor) in Processing any Personal Data comprised in the Customer Material. Customer acknowledges that Personal Data, other than that comprised in the Customer Material, will be Processed in accordance with Suga's Privacy Policy available on our website.

6.2 Credentials and Sensitive Data

Customer acknowledges and agrees that:

a. the Service may require Customer to provide credentials, API keys, access tokens or other authentication information for Cloud Provider Accounts, Source Code Repositories, Container Registries and other integrated services;

b. Suga will store such credentials securely using industry-standard encryption and access controls;

c. Customer is responsible for ensuring that all credentials provided to Suga have only the minimum permissions necessary for the Service to function; and

d. Customer must promptly notify Suga if any credentials provided to the Service are compromised or revoked.

6.3 Data Security

Suga must implement reasonable technical and organisational security controls to protect the Customer Material against loss, unauthorised access, modification and disclosure (Data Breach) in accordance with applicable Privacy Laws, including:

a. not disclosing the Customer Material except to its sub-processors and their respective personnel for the purpose of performing the Agreement; and

b. maintaining appropriate business continuity and disaster recovery measures for the Service, provided that Customer remains responsible for regularly backing up its own Customer Material, Customer Applications and cluster configurations.

6.4 Data Breaches

If either party becomes aware of any actual or suspected Data Breach affecting the Customer Material:

a. that party must promptly notify the other party in writing, including in such notice all known details of the actual or suspected Data Breach;

b. Suga must provide Customer with information and assistance reasonably required by Customer to investigate and assess the actual or suspected Data Breach (at Customer's cost);

c. Customer is solely responsible for determining whether the actual or suspected Data Breach is notifiable under Privacy Laws, subject to clause 6.4(e);

d. Customer must not reference Suga in any notification or communication relating to the actual or suspected Data Breach without Suga's prior written approval as to the form and content of the reference; and

e. Suga may make a notification or communication about the Data Breach if Customer fails to do so and Suga is required to do so under applicable Privacy Laws.

6.5 Usage data and analyses

Suga may:

a. use data relating to Customer's and End User's use of the Service for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Service; and

b. freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Service and the Customer Material in anonymised and aggregated form such that neither Customer nor End Users are identifiable.

7 Confidentiality

7.1 Obligation of confidence

Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 7.

7.2 Permitted use

The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.

7.3 Permitted disclosures

The Recipient may disclose Confidential Information of the Discloser:

a. to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;

b. to the extent required by law or the rules of any stock-exchange; and

c. with the prior written consent of the Discloser.

To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party's name and logo, without being in breach of this clause.

8 Warranties and indemnities

8.1 DISCLAIMER

TO THE EXTENT PERMITTED BY LAW, SUGA PROVIDES THE SERVICE "AS IS" AND EXCLUDES ALL CONDITIONS, WARRANTIES AND GUARANTEES OTHER THAN THOSE SET OUT EXPRESSLY IN THE AGREEMENT. WITHOUT LIMITATION, SUGA DOES NOT WARRANT THAT THE SERVICE OR ANY SUPPORT SERVICE WILL BE:

a. CONTINUOUS, FREE FROM ERRORS, OMISSIONS, DEFECTS, SECURITY RISKS OR VULNERABILITIES;

b. FIT FOR ANY PURPOSE OR MEET THE REQUIREMENTS OF CUSTOMER OR ANY END USER.

THIS DISCLAIMER APPLIES WITH FULL FORCE DURING ANY PRE-RELEASE PERIOD, AND CUSTOMER ACKNOWLEDGES THAT USE OF THE SERVICE DURING SUCH PERIODS CARRIES ADDITIONAL RISK AS SET OUT IN CLAUSE 1.5.

8.2 Non-excludable terms

If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, Suga's liability for breach of such condition, warranty or guarantee is limited (at Suga's option) to resupply of the Service, Support Service or Professional Service or payment of the cost of the same.

8.3 Suga indemnity

Suga must indemnify Customer against all Losses suffered or incurred by Customer arising out of or in connection with:

a. any IP Claim;

b. any breach of clause 5.2, 6 or 7 by Suga,

in each case, except to the extent that the Claim or breach is caused or contributed to by Customer, End Users or any Customer Materials or Third Party Materials.

8.4 Customer indemnity

Customer indemnifies Suga and its Affiliates against and must pay on demand all Losses suffered or incurred by any of them arising out of or in connection with:

a. any Claim that any Processing of the Customer Material infringes the Intellectual Property Rights or rights in information of a third party;

b. any breach of clause 1.2, 5.2, 6 or 7 by Customer,

in each case, except to the extent that the Claim or breach is caused or contributed to by Suga.

8.5 Conduct of Claims

The indemnification obligation of a party (indemnifying party) under clause 8.3 or 8.4 in respect of any third party Claim is subject to the other party:

a. promptly notifying the indemnifying party of the third party Claim;

b. permitting the indemnifying party to control the defence of the third party Claim; and

c. providing (at the indemnifying party's cost) all information and assistance reasonably requested by the indemnifying party in connection with the defence of the third party Claim.

8.6 Sole and exclusive remedy

Without prejudice to the termination rights of each party:

a. clause 4.4 and 8.3 sets out Customer's sole and exclusive remedy in respect of the matters indemnified by Suga; and

b. clause 8.4 sets out Suga's sole and exclusive remedy in respect of the matters indemnified by Customer.

9 LIABILITY

9.1 EXCLUSION OF INDIRECT LOSS

TO THE EXTENT PERMITTED BY LAW, EACH PARTY EXCLUDES ANY AND ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER BASIS IN LAW OR EQUITY FOR ANY INDIRECT LOSS. SOME US JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, SO THIS EXCLUSION OR LIMITATION MAY NOT APPLY IF CUSTOMER IS LOCATED IN ANY SUCH JURISDICTION.

9.2 LIMITATION OF LIABILITY

THE LIABILITY OF A PARTY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER BASIS IN LAW OR EQUITY, IN ANY AGREEMENT YEAR IS LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT IN THAT AGREEMENT YEAR, SUBJECT TO CLAUSES 2.4 AND 9.3.

9.3 UNLIMITED LIABILITY

THE LIMITATION OF LIABILITY IN CLAUSE 9.2 DOES NOT APPLY TO THE LIABILITY OF A PARTY:

a. UNDER ANY INDEMNITY IN CLAUSE 8.4;

b. TO PAY FEES THAT ARE DUE AND PAYABLE; OR

c. FOR ANY MATTER IN RESPECT OF WHICH LIABILITY MAY NOT BE LIMITED AT LAW.

9.4 INJUNCTIVE RELIEF

CUSTOMER ACKNOWLEDGES THAT DAMAGES ARE NOT A SUFFICIENT REMEDY FOR ANY BREACH OF CLAUSE 1.1, 1.2, 2.1, 5, 6 OR 7 OF THE AGREEMENT AND THAT SUGA IS ENTITLED TO SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF (AS APPROPRIATE) AS A REMEDY FOR ANY BREACH OR ANTICIPATED BREACH OF THOSE CLAUSES (IN ADDITION TO ANY OTHER REMEDIES).

10 Term, suspension and termination

10.1 Subscription Term

The Agreement will remain in force for the Subscription Term, unless terminated earlier in accordance with this clause 10.

10.2 Suspension

Suga may suspend the rights granted pursuant to clause 1.1:

a. during any period in which Customer is in breach of the Agreement; or

b. to prevent or mitigate actual or suspected illegal activity, damage to Suga's systems, or threat to the integrity of the Service.

10.3 Termination for cause

A party may terminate the Agreement with immediate effect on written notice if the other party:

a. commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Customer of clauses 1.1, 1.2, 2.1, 3.3, 5, or 7 is a material breach for the purposes of this clause;

b. becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.

10.4 Consequences of termination or expiry

On termination of the Agreement:

a. all rights to the Service granted under the Agreement cease immediately and Customer must immediately cease using the Service;

b. Suga has no further obligation to retain the Customer Material, provided that Suga permits Customer to access the Service for the sole purpose of downloading the Customer Material for a period of 30 days following expiry or termination;

c. Customer remains responsible for any Connected Clusters and resources provisioned through the Service, including any ongoing costs charged by Cloud Providers; and

d. Customer must immediately pay Suga all Fees due and payable as at the date of termination or expiry and, if Suga terminates pursuant to clause 10.3, all Fees payable for the remainder of the Subscription Term.

11 Miscellaneous

11.1 Entire agreement

This Customer Agreement, the Order and any SOW are the entire agreement between the parties in respect of their subject matter. In the event of any inconsistency between the terms of this Customer Agreement, the Order and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.

11.2 Amendment

Suga may amend this Customer Agreement at any time by posting the amended version of this Customer Agreement on our website. The amended version of this Customer Agreement will take effect upon the earlier of the date that is:

a. 30 days following of the amendment to this Customer Agreement; and

b. the next renewal date of Customer's subscription.

11.3 Force Majeure Events

Suga is not liable for any delay or failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.

11.4 Severance

If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.

11.5 Transfer

Customer must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of Suga. Customer consents to Suga:

a. assigning its rights under the Agreement to its Affiliates;

b. assigning or novating the Agreement in connection with any solvent amalgamation, reconstruction, restructure, sale of shares, assets, raise or financing of Suga and/or its Affiliates; and

c. subcontracting its obligations under the Agreement to third parties, including Affiliates.

11.6 Waiver

A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

11.7 Third party rights

No person other than Suga and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.

11.8 Relationship of the parties

The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.

11.9 Governing Law

The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.

12 Definitions

In this Customer Agreement, these terms have the following meanings:

Affiliate means an entity that Controls, is Controlled by, or is under common Control with that party.

Agreement means the agreement consisting of this Customer Agreement, the Order and any SOW.

Agreement Year means a period of 12 months from the date of the Order forming part of the Agreement or an anniversary of that date.

Claim means any demand, claim, action or proceeding, however arising and whether present, unascertained, immediate, future or contingent.

Cloud Provider means a provider of cloud computing infrastructure services, including Amazon Web Services, Microsoft Azure, Google Cloud Platform, DigitalOcean, Civo and other providers supported by the Service as specified in our documentation.

Cloud Provider Account means an account with a Cloud Provider that is:

a. owned or controlled by Customer;

b. properly configured and connected to the Service; and

c. used by the Service to provision or manage Connected Clusters.

Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:

a. including the terms of the Agreement and, in the case of Suga, all source code to, Suga Data comprised in, and pricing for, the Service; but

b. excluding any such information that is in the public domain (other than as a result of a breach of confidence).

Connected Cluster means a Kubernetes cluster that is:

a. owned or controlled by Customer (whether provisioned through the Service or brought by Customer);

b. properly configured and connected to the Service; and

c. managed through the Service during the Subscription Term.

Container Registry means a container image registry service (such as Docker Hub, Amazon ECR, Google Container Registry, or a private registry) that is:

a. owned or controlled by, or accessible to, Customer;

b. properly configured and connected to the Service; and

c. used by the Service to store or retrieve container images for Customer Applications.

Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:

a. direct or indirect ownership of more than 50% of the voting rights of such person; or

b. the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.

Customer Application means any software application, container, workload or service that is owned or controlled by Customer and deployed to a Connected Cluster through the Service.

Customer Material means Customer Applications, source code, container images, secrets, environment variables, configuration values, cluster configurations and other data which is uploaded to or Processed through the Service. To avoid any doubt, no part of the Service is Customer Material.

End User means any employee, contractor or agent of Customer who accesses or uses the Service through Customer's subscription.

Fees means the fees, costs and expenses for the supply of the Service, Support Services and any Professional Services specified in the Order (including applicable fees of Suga's third party suppliers).

Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.

Indirect Loss means:

a. loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and

b. any Loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.

Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.

IP Claim means any Claim that use of the Service by Customer in accordance with the Agreement infringes any copyright or patent owned by a third party in Australia or the United States of America.

Loss means loss, damage, liability, cost (including all legal and other professional costs on a full indemnity basis), charge, expense, outgoing, fine or payment of any nature or kind.

Order means an order form setting out the details of Customer's purchased subscription to the Service as specified in any:

a. Suga Order Form in respect of the Service executed by the parties; or

b. online order form completed by Customer and logged in Suga's customer relationship management system,

including details of the applicable Service tier, Fees and Subscription Term.

Personal Data means information about an identified individual or an individual who is reasonably identifiable, including 'personal information' and 'personally identifiable information' as defined in applicable Privacy Law.

Privacy Law means any applicable law governing the Processing of Personal Data in Australia or the United States of America, including (to the extent applicable) the Privacy Act 1988 (Cth) and California Consumer Privacy Act (2018).

Privacy Policy means the privacy policy available on our website as updated from time to time.

Pre-Release Period means any period during which the Service (or any feature of the Service) is designated by Suga as 'alpha', 'beta', 'preview', 'early access', 'experimental' or similar, whether communicated via the Service interface, our website, or other notice to Customer.

Process means to collect, store, access, use, copy, adapt, modify, reformat, transform, compile, disclose, deploy to a Connected Cluster or perform any other set of operations on.

Professional Services means any support, implementation, training, data migration or other service not forming part of the Service or Support Services.

Service means the 'Suga' cloud service which enables the connection to, deployment of, and management of Kubernetes clusters and the deployment of cloud-native software applications to those clusters, as described in the Order, including any Updates.

Source Code Repository means a Git repository (such as GitHub, GitLab, or Bitbucket) that is:

a. owned or controlled by, or accessible to, Customer;

b. properly configured and connected to the Service (including via any required application integrations); and

c. used by the Service to access source code for building and deploying Customer Applications.

SOW means a statement of work setting out the details of the Professional Services to be provided by Suga, including the agreed scope and applicable Fees.

Subscription Term means:

• the initial term of Customer's subscription to the Service specified in the Order; and
• successive renewal terms equal to the initial term thereafter, unless Customer provides notice of non-renewal at least 14 days prior to the expiry of initial term or renewal term (as applicable).

Support Services means the support services for paid subscriptions to the Service as described on our website, including:

a. support via dedicated communication channels (such as Slack or email) for Service defects and general assistance; and

b. making Updates available from time to time.

Third Party Material means content, data, products, software, functionality or services owned or controlled by third parties, including Cloud Provider services, Connected Clusters (to the extent managed by Cloud Providers), Source Code Repositories and Container Registries which integrate or interoperate with the Service.

Third Party Provider means any third party supplier to Suga or its Affiliates of hosting, software or services used to support or supply the Service.

Updates means any new version, release, update, patch, fix, configuration or other modification of the Service made available by Suga to its customers generally during the Subscription Term.