INTRODUCTION

This Pump Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Platform (as defined below) and is an agreement between Pump Billing, Inc., with an office located at 1390 Market Street, San Francisco, 94102, California (also referred to as “Pump,” “we,” “us,” or “our”) and you or the entity you represent (“Customer”, “you” or “your”).  Pump is an authorized partner of Azure, GCP and AWS. Our AWS Partner ID is 1845440. Our GCP Partner ID is 0014M00002Jmi3dQAB. Our Azure Partner ID is 6949070.

Capitalized  terms have the definitions set forth herein or in the applicable Azure and/or AWS and/or GCP Agreement(s). Pump and Customer are sometimes referred to in this Agreement collectively as the “Parties” and individually as a “Party.”

You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. 

This Agreement takes effect when you click an “I Accept” button on our platform (the “Effective Date”). 

Agreement Version Date: April 9, 2025

1. Definitions. 

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with that Party.

1.2.  “Authorized User” means Customer’s employees, consultants, contractors, and/or agents who are registered on the Platform by Customer, and authorized by Customer to access and use the Platform.  

1.3. “AWS” means Amazon Web Services, Inc. and its Affiliates providing AWS Services.

1.4. “AWS Account(s)” means Customer’s AWS account(s) for AWS Services.

1.5. “AWS Agreement(s)” means all agreements and guidelines that govern Customer’s relationships and AWS Account(s) with AWS. 

1.6. “AWS Services” means each of the services made available by AWS or its Affiliates for which Customer may register via the AWS Site (or by such other means made available by AWS), without limitation, those web services available at the AWS Site and/or described in the Service Terms at the following URL: https://aws.amazon.com/service-terms/  (and any successor or related locations designated by AWS), as may be updated by AWS from time to time

1.7. “GCP” means Google Cloud Platform, Inc. and its Affiliates providing GCP Services.1.8. “GCP Account(s)” means Customer’s GCP account(s) for GCP Services.

1.9. “GCP Agreement(s)” means all agreements and guidelines that govern Customer’s relationships and GCP Account(s) with GCP. 

1.10 “GCP Services” means each of the services made available by GCP; or its Affiliates for which Customer may register via the GCP  Site (or by such other means made available by GCP), without limitation, those web services available at the GCP Site and/or described in the Service Terms at the following URL: https://www.google.com/cloud (and any successor or related locations designated by GCP), as may be updated by GCP from time to time.

1.11 “Azure” means Microsoft Azure, a cloud computing service created by Microsoft for building, testing, deploying, and managing applications and services through Microsoft-managed data centres.

1.12 “Azure Agreement(s)” means all agreements and guidelines that govern Customer’s relationships and Azure Account(s) with Azure.

1.13 “Azure Services” means each of the services made available by Azure; or its Affiliates for which Customer may register via the Azure  Site (or by such other means made available by Azure), without limitation, those web services available at the Azure Site and/or described in the Service Terms at the following URL: https://www.microsoft.com/licensing/terms/productoffering/MicrosoftAzure/OL (and any successor or related locations designated by Azure), as may be updated by Azure from time to time.

1.14 “AWS Reserved Instances” means a form of AWS discount obtained in exchange for either a one or three year commitment to a specific instance type and region.

1.15. “AWS Savings Plans” means a form of AWS discount obtained in exchange for either a one or three year commitment with flexibility across a category of instances like compute.

1.16. “Committed Use Discount” means a form of GCP discount obtained in exchange for a one or three year commitment to a specific category of instances like compute.

1.17. “Sustained Use Discount” means a form of GCP discount automatically applied for consistently using Compute Engine resources over a billing month.

1.18. “Azure Reserved Instances” means a form of Azure discount obtained in exchange for either a one or three year commitment to a specific instance type and region.

1.19. “Azure Savings Plans” means a form of AWS discount obtained in exchange for either a one or three year commitment with flexibility across a category of instances like compute.

1.20. “AWS Site” means https://aws.amazon.com (and any successor or related locations designated by AWS), as may be updated by AWS from time to time.

1.21. “Customer Account” or “Customer’s Account” means Customer’s Pump account on the Platform.

1.22. “Customer Data” means any Customer Azure Services and/or AWS Services and/or GCP Services performance, operation and usage data, that is  aggregated and de-identified, including, without limitation, CPU utilization, instance metadata tags, reservation information, and information relating to 

1.22.1 Customer’s compute AWS Savings Plans that the Platform generates or collects.

1.22.2 Customer’s compute AWS Reserved Instances that the Platform generates or collects.

1.22.3 Customer’s compute Azure Savings Plans that the Platform generates or collects.

1.22.4 Customer’s compute Azure Reserved Instances that the Platform generates or collects.

1.22.5 Customer’s compute GCP Committed Use Discounts that the Platform generates or collects.

1.22.6 Customer’s compute GCP Sustained Use Discounts that the Platform generates or collects.

1.23. “Confidential Information” means any information that is disclosed or made available by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, whether before or after the Effective Date, that is either designated as confidential or proprietary, or that the Receiving Party should reasonably understand to be non-public, confidential, proprietary or sensitive information given its nature and the circumstances of its disclosure, but does not include any particular information of the Disclosing Party that the Receiving Party can demonstrate: after disclosure to the Receiving Party, was received from a third party who, to the Receiving Party's knowledge, had a lawful right to disclose such information to the Receiving Party and does so without imposing on Receiving Party any obligation to restrict its further use or disclosure; or 

1.23.1. was in the possession of, or was rightfully known by, the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Disclosing Party;

1.23.2. was independently developed by the Receiving Party without use of or reference to any of the Disclosing Party’s Confidential information.  

1.23.3. was or has become generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, persons under its control, or its agents; 

1.24. “Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.

1.25. “Intellectual Property Rights” means any ideas, whether or not patentable, inventions, discoveries, processes, works of authorship, marks, names, know-how and any and all rights throughout the world, whether existing under statute, common law or equity, now or hereinafter recognized, comprising or relating to:

1.25.1. authorship rights, copyrights and copyrightable works (including computer programs) and rights in source code, data, and databases; 

1.25.2. patents, patent disclosures, designs, and inventions (whether patentable or not); 

1.25.3. trade secrets, know-how, and other confidential information; and

1.25.4. trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith;

1.25.5. all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.

1.26. “Platform” means the online software as a service platform, including the Pump Content, which optimizes the costs for Azure Services and/or AWS Services and/or GCP Services through flexible pricing models available for 

1.26.1. AWS Reserved Instances and AWS Savings Plans, see, for example, https://help.pump.co/overview/list-of-aws-discounts, and via consolidated billing across its customer base which may provide additional volume tier price discounts and enterprise discount programs, and

1.26.2 GCP Committed Use Discounts, see, for example, https://cloud.google.com/docs/cuds and via consolidated billing across its customer base which may  provide additional volume tier price discounts and enterprise discount programs, and

1.26.3 GCP Sustained Use Discounts, see, for example, https://cloud.google.com/docs/suds and via consolidated billing across its customer base which may provide additional volume tier price discounts and enterprise discount programs, and

1.26.4 Azure Reserved Instances and Azure Savings Plans, see, for example, https://azure.microsoft.com/en-us/pricing/offers/savings-plan-compute#Select-services and via consolidated billing across its customer base which may provide additional volume tier price discounts and enterprise discount programs.

1.27. “Privacy Notice” means the privacy notice located at https://pump.co/privacy (and any successor or related locations designated by us), as may be updated by us from time to time.

1.28. “Pump Analytical Data” means the collection of Pump’s customers’ Customer Data, and all extensions, modifications, and expansions thereof.    

1.29. “Pump Content” means Pump Analytical Data, application program interfaces, WSDLs, sample code, software, software libraries, software images, command line tools, data, text, audio, video, or images, proofs of concept, templates, advice, information, programs (including credit and discount programs) and any other works of authorship made available by us and our Affiliates and our licensors related to use of the Platform and other related technology.

1.30. “Pump Invoices” means Pump’s invoices for Customer’s Azure Services and/or AWS Services and/or GCP Services that are assessed by AWS or Azure or GCP but billed to Customer and collected by Pump.

1.31. “Suggestions” means all suggested improvements to the Platform that you provide to us.

1.32. “Term” means the duration of this Agreement described in the Term and Termination Section.

2. Platform 

2.1 Registration. 

2.1.1 To access the Platform, the Customer must register and authorize users (which shall become Authorized Users) as provided at https://app.pump.co.  When registering for an account, Customer and its Authorized Users will be required to provide Pump with certain registration information, including, without limitation, the Customer’s name, email address, account password, billing information and banking information. 

2.1.2 Customer represents and warrants that the registration information provided to Pump is accurate, complete, and not misleading, and that Customer covenants that it will keep such information accurate and up to date at all times. Each  account created by Customer may not be transferred, sold or otherwise assigned to or shared with any other individual or entity. Customer is solely responsible for maintaining  the confidentiality of its account and password and those of its Authorized Users, and Customer accepts responsibility for all activities that occur under its and of its Authorized Users. Customers will immediately notify the Pump upon becoming aware, or having a reasonable basis to believe, that its or its Authorized Users’ accounts are no longer secure.

2.1.3 Customer shall authorize Pump access to the Customer’s Azure Services and/or AWS and/or GCP Services as provided in the registration process at https://help.pump.co/pump-account/getting-set-up.

2.2 Authorizations. Customer hereby authorizes Pump throughout the Term to take the following actions on behalf of Customer on Azure and/or AWS or GCP account(s), through the Azure and/or AWS and/or GCP roles:

2.2.1 The roles as described at https://help.pump.co/connecting-aws/cross-account-role

2.2.2 purchasing or selling the following on behalf of Customer for the duration of up to thirty-six (36) months

2.2.2.1 AWS Reserved Instances and/or AWS Savings Plans

2.2.2.2 Committed Use Discounts and/or Sustained Use Discounts

2.2.2.3 Azure Reserved Instances and/or Azure Savings Plans

2.2.3 Such other actions to optimize Customer’s use of the Azure Services and/or AWS Services and/or the GCP Services.

2.3 Pump Purchases.  Customer is financially responsible for all purchases by Pump on the Platform of the following:

2.3.1.AWS Reserved Instances and/or AWS Savings Plans for Customer in accordance with the terms and conditions of this Agreement, and shall remain financially responsible to AWS for such purchases after this Agreement Terminates for any reason.

2.3.3. Azure Reserved Instances and/or Azure Savings Plans for Customer in accordance with the terms and conditions of this Agreement, and shall remain financially responsible to Azure for such purchases after this Agreement Terminates for any reason.

2.3.3. Committed Use Discounts or Sustained Use Discounts for Customer in accordance with the terms and conditions of this Agreement, and shall remain financially responsible to Azure for such purchases after this Agreement Terminates for any reason.

2.4 Customer Purchases. Pump is not financially responsible for Customer’s purchases of the following: 

2.4.1. AWS Reserved Instances and/or AWS Savings Plans in accordance with the terms and conditions of this Agreement, and such purchases shall be financial responsibility of Customer. Once on the Platform, Customer is strongly recommended to stop all further direct purchasing of AWS Reserved Instances or AWS Savings Plans.

2.4.2. Azure Reserved Instances and/or Azure Savings Plans in accordance with the terms and conditions of this Agreement, and such purchases shall be financial responsibility of Customer. Once on the Platform, Customer is strongly recommended to stop all further direct purchasing of Azure Reserved Instances or Azure Savings Plans.

2.4.3. Committed Use Discounts and/or Sustained Use Discounts in accordance with the terms and conditions of this Agreement, and such purchases shall be financial responsibility of Customer. Once on the Platform, Customer is strongly recommended to stop all further direct purchasing of Committed Use Discounts and/or Sustained Use Discounts

2.5 Support.  Pump will provide Customer with free advisory and technical support for the billing optimization of Customer’s Azure Services and/or AWS Services and/or GCP services.

2.6 Authorized Users. Customer is responsible for all use or misuse of the  Platform by  its Authorized Users, and a breach by any such Authorized User of any term of this Agreement shall be deemed a breach by Customer. Pump reserves the right to immediately suspend Customer and any or all Authorized Users’ access to the Platform if Pump believes, in its sole discretion, that an Authorized User has misused the Platform. Customer shall notify Pump if Customer wishes to add Authorized Users; Pump  may accept or deny such a request in its sole discretion.  

2.7 Notice of Changes to the Platform. Pump may change or discontinue any of the Platform services from time to time. We will provide you at least thirty (30) days’ prior notice before changing or discontinuing a functionality of a Platform, however, we may provide a short notice period if Azure and/or AWS and/or GCP  changes its application programming interface, if Azure and/or AWS and/or GCP or Pump’s authorized distributor materially changes their business relationship with Pump, if Azure and/or AWS and/or GCP changes the terms of an existing program of which Pump or Customer is an active party, or Azure and/or AWS and/or GCP materially changes their pricing and discount models.

3. Privacy.   

3.1 The Pump Privacy Policy available at https://www.pump.co/privacy is hereby incorporated herein by reference and is thus binding on the Customer. 

4. Intellectual Property Rights and Licenses. 

4.1 Pump’s Intellectual Property Rights in the Platform. Except for the limited license expressly granted to Customer herein, Pump is the sole and exclusive owner and reserves all right, title and interest, including but not limited to all Intellectual Property Rights, in and to Platform.

4.2 Pump License to Customer.  Provided Customer timely pays the Pump Invoices, Pump hereby grants to Customer, and its Affiliates and their respective Authorized Users the limited non-exclusive, non-transferable, license during the Term to access and display the Platform, and may not reproduce, perform, access and use the Platform subject to the restrictions in Section 4.3 below:

4.3 Restrictions. Customer and each Authorized User shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: 

4.3.1 transfer, distribute, sell, lease, license or sublicense access to the Platform; 

4.3.2 attempt to decompile, disassemble, or reverse engineer the Platform, in whole or in part; 

4.3.3 allow access to the Platform by any person other than an Authorized User; 

4.3.4 write or develop any  derivative software or any other software program based upon the Platform any Pump Confidential Information; 

4.3.5 use the Platform to provide processing services to third parties, or otherwise use  the Platform on a ‘service bureau’ or sharing basis; or 

4.3.6 provide, disclose, divulge or make available to, or permit use of the Platform by any third party.   

4.4 Customer License of Customer Data to Pump.  Customer owns all Intellectual Property Rights in Customer Data.  Customer hereby grants to Pump a perpetual, worldwide, non-exclusive, fully paid up, royalty-free, fully transferrable and sublicensable, irrevocable right and license to access, use, reproduce, perform, and display the Customer Data, and to create derivative works based on thereon for the use and operation of the Platform, for development, diagnostic and corrective purposes in connection with the Platform, including but not limited to, performing or utilizing statistical analysis, creating models, utilizing machine learning, neural networks, artificial intelligence and any other techniques now known or hereafter developed as solely determined by Pump.

4.5 Pump Analytical Data. Pump solely and exclusively owns all Intellectual Property Rights in the Pump Analytical Data. 

4.6 Suggestions. If Customer provides Pump any Suggestions, Customer waives all Intellectual Property Rights to such Suggestions and Pump shall be entitled to use and if applicable, seek protection of the Intellectual Property Rights in such Suggestions and Customer shall provide Pump any reasonable assistance Pump requires to document, assign, perfect, and prosecute Intellectual Property Rights therein.

4.7 Customer Infrastructure & Environment.  Customer acknowledges that Customer does not provide Pump with permission to modify Customer’s Azure and/or AWS and/or GCP infrastructure and environment except for the buying of savings commitments, nor will Pump access Customer’s client’s data.  Customer shall at all times be solely responsible for the use, operation, maintenance, security, collection, import, and export of any  and all Customer operations, compute, data and information on Customer’s Azure Services and/or AWS Services and/or GCP Services.  

5. Customer Payment Obligations.  

5.1 Throughout the Term, Customer remains fully responsible for all fees, charges, taxes and other expenses billed by Azure and/or AWS and/or by GCP, including all purchases of AWS Reserved Instances and/or AWS Savings Plans and/or Committed Use Discounts and/or Sustained Use Discounts and/or Azure Reserved Instances and/or Azure Savings Plans purchased by Pump as provided in Section 2., however, Pump as an Azure and/or AWS and/or GCP Authorized Partner through Pump’s AWS Distribution Seller agreement and/or Google Cloud Platform Distribution Seller agreement and/or Microsoft Cloud Partner Program Agreement, shall invoice Customer with Pump Invoices, and Customer shall timely pay Pump for the Pump Invoices.

5.1.1 Specifically for GCP Committed Use Discounts and/or Sustained Use Discounts, should Customer terminate their relationship with Pump.co in accordance with Section 7., they will be liable to pay the full amount that will be owed by Pump to GCP immediately, as calculated by the GCP Billing Console.

5.2 As an Authorized Partner of Azure and/or AWS and/or GCP, Pump is paid by Azure and/or AWS and/or GCP, not Customer.  Pump’s invoices to Customer are solely for the AWS Services fees, charges and expenses charged to the Customer’s AWS Account(s).  

5.3 The Azure Services and/or AWS Services and/or GCP Services consumed by Customer will be billed by Pump at the standard price list published at the following URL: https://aws.amazon.com/pricing for AWS Services and/or https://www.google.com/gcp for GCP Services and/or https://azure.microsoft.com/en-us/pricing/calculator/ for Azure. Each month Azure Services and/or AWS Services and/or GCP calculates the fees, charges, taxes and other expenses for Customer’s use of the Azure Services and/or AWS Services and/or GCP Services, of which those fees will be net of any savings, discounts, etc. as a result of your using the Platform.  

5.4 Taxes. Customer is responsible, as required under applicable law, for paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Customer’s Azure and/or AWS and/or GCP Agreement(s) and this Agreement. All fees payable by you are exclusive of Indirect Taxes, except where applicable law requires otherwise. Azure and/or AWS and/or GCP may charge, and Customer shall pay applicable Indirect Taxes that Pump is legally obligated or authorized to collect from Customer. Customer shall provide such information to us as reasonably required to determine whether Azure and/or AWS and/or GCP or Pump are obligated to collect Indirect Taxes from Customer. Pump shall not collect, and Customer will not pay, any Indirect Tax for which Customer furnishes Pump and Azure and/or AWS and/or GCP a properly completed exemption certificate and/or a direct payment permit certificate for which Azure and/or AWS and/or GCP and/or Pump can claim an available exemption from such Indirect Tax. All payments made by Customer to Pump under this Agreement will be made free and clear of any deduction or withholding, as required by law. If any such deduction or withholding (including cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Pump is equal to the amount then due and payable. Azure and/or AWS and/or GCP will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments. 

5.5 Customer hereby authorizes Pump to debit Customer’s designated bank account, as specified by it on the Platform, for each Pump Invoice.  Pump will debit the Customer for the applicable Pump Invoice on the second day after the date of the Pump Invoice.  

5.6 If Customer does not authorize Pump to debit its bank account, Customer must pay Pump via ACH transfer or payment via check, either of which must be received by Pump by the seventh (7th) day after the invoice.  Any payment of a Pump Invoice not received after the seventh (7th) day after the invoice will be deemed delinquent and charged one and one half a percent (1.5%) of the Pump Invoice amount as a late fee, and such charge will repeat each month thereafter, compounding the prior months’ interest fees.

5.7 Pump shall pay Azure and/or AWS and/or GCP for Customer’s Services within one day after Customer’s payment to Pump of the Pump Invoice, and such payment has cleared at Pump’s bank. 

5.8 In case of non-payment (over 15 days of accrued balance), Pump without further notice may request the suspension of Customer’s Azure and/or AWS and/or GCP account. Pump may also transfer Customer’s account to a third-party collection agency, solely at Pump’s discretion. Please note that a third-party collections agency may impose additional charges. Failure to pay may also result in Pump pursuing Customer legally to recover the value owed, and thus Customer shall be responsible for all legal fees and expenses.

5.9 As provided in your Customer Agreement, Azure and/or AWS and/or GCP may bill you more frequently for fees accrued if Azure and/or AWS and/or GCP and/or Pump suspects that your account is at risk of non-payment, in which case Pump shall provide Customer with the Pump Invoice with the frequency selected by Azure and/or AWS and/or GCP.. 

5.10 All amounts payable by you under the AWS Agreement(s),  Azure Agreements, GCP Agreement(s) and this Agreement will be paid to Pump without setoff or counterclaim, and without any deduction or withholding. Fees, charges and taxes will be effective when we post updated fees and charges on the Platform, unless we expressly state otherwise in a notice. 

5.11 Azure and/or AWS and/of GCP may increase or add new fees, charges, discounts and AWS Savings Plans, as provided in the AWS Agreement(s).  

5.12 If Customer does not authorize Pump to debit its bank account, Customer is responsible for notifying Pump via an email to bills@pump.co that payment has been made upon making payment as per 5.6. Pump is not liable for any delays, and any consequences thereof, in registering a Pump Invoice as paid if Customer has not notified Pump via an email to bills@pump.co.

6. Credits 

6.1 In the event the Platform causes Customer to purchase excess savings commitments, which are unused for a full 30 day period, and when such spending causes a net loss when subtracted from Customer’s lifetime Pump savings (hereinafter Excess Purchases), Pump shall issue Pump credits equal to the amount of such net loss to Customer. Pump may ask Customer to take reasonable steps to mitigate this net loss, such as changing organizations or registering for the RI marketplace before issuing credits for overcommitments.

7. Term and Termination 

7.1 Term. This Agreement will take effect on the Effective Date and will remain in force and effect until terminated by a Party in accordance with this Section (the “Term”). 

7.2 Termination by Convenience. This Agreement may be terminated by either Party upon thirty (30) days’ prior written notice to the other Party, with or without cause. 

7.3 Termination Events. Pump may, by written notice to Customer, terminate this Agreement if any of the  following events (“Termination Events”) occur: 

7.3.1 Customer fails to pay any amount due Pump within fifteen (15) days after Pump gives Customer  written notice of such nonpayment; or 

7.3.2 Customer or any of its Authorized Users are in material breach of any terms of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Pump gives Customer written notice of such breach; or 

7.3.3 Customer terminates or suspends its business, becomes insolvent, admits in writing its inability  to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control  of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under  federal or state statutes. 

7.4 Upon Termination for Convenience or any Termination Event, termination will become effective immediately or on the date set forth in the written notice of termination. Termination of this Agreement will not affect or terminate the provisions regarding the Party’s treatment of Confidential Information, Customer’s obligations relating to the payment of amounts due, Customer’s continuing obligation to pay Pump, Azure and/or AWS and/or GCP for purchased saving commitments, or provisions limiting or disclaiming Pump’s liability.

8. Warranties and Disclaimers.

8.1 Mutual Warranties. Pump and Customer each represents and warrants to the other that it has full power and authority to enter into and perform this Agreement, the execution, delivery and performance of this Agreement has been duly authorized, and its performance hereunder does not breach any other agreement to which it is bound.

8.2 Additional Customer Representations and Warranties. Customer represents and warrants that: 

8.2.1 Customer has at all times been and shall continue throughout the Term to be in full compliance with the Azure Agreements and/or AWS Agreement(s); and/or GCP Agreement(s),

8.2.2 Customer has all rights, licenses, permits, qualifications and consents necessary to perform its obligations in this Agreement

8.2.3 the AWS Reserved Instance and/or AWS Savings Plans or other commitment vehicles are free and clear of all liens, security interests, or other encumbrances; and

8.2.4 Customer has not taken any action or entered into any agreement for Customer to, or requiring Pump to, assign, transfer, license, or grant to any other person or entity the right to use the  Reserved Instance  and/or Savings Plan or that otherwise encumbers the Reserved Instance and/or Savings Plan or other savings vehicle.

8.3 Pump Disclaimer.  THE PLATFORM IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, PUMP AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PLATFORM, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT PLATFORM WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. 

9. Limitations of Liability.  

9.1 EXCEPT TO THE EXTENT PROHIBITED BY LAW, PUMP AND ITS AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO CUSTOMER UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF PUMP OR ITS AFFILIATES OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR (A) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (B) THE VALUE OF THIS AGREEMENT OR ANTICIPATED SAVINGS,   (C)   LOSS   OF   PROFITS,   REVENUES,   DISCOUNTS, CUSTOMERS,   OPPORTUNITIES,   OR   GOODWILL, (D) UNAVAILABILITY OF THE PLATFORM OR AWS  SERVICES OR AZURE SERVICES OR THE GCP SERVICES , OR (E) INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER RELATED TO THIS AGREEMENT. FURTHER, NEITHER PUMP NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE PLATFORM, OR THE AZURE SERVICES OR AWS SERVICES OR GCP SERVICES INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE PLATFORM (II) OUR DISCONTINUATION OF ANY OR ALL OF THE PLATFORM, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE PLATFORM FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE PLATFORM; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, PUMP’S AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE VALUE OF THE AMOUNT AZURE OR AWS OR GCP PAID PUMP FOR THE SERVICES PUMP RENDERED TO CUSTOMER FOR THE ONE MONTH BEFORE THE CLAIM OR LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Indemnification.

10.1  Indemnity by Customer.  Customer will defend, indemnify, and hold harmless Pump, its Affiliates, and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees,  arising from or related to any third-party claim concerning 

10.1.1 Customer’s use of the Services; 

10.1.2 a breach by Customer of this Agreement;

10.1.3 a breach by Customer of any agreement it has with any Azure and/or AWS and/or GCP, 

10.1.4 a violation by Customer of any applicable law; 

10.1.5 the infringement or  misappropriation of  any third-party intellectual property rights  

10.1.6 taxes, fees, interest, or penalties imposed on Pump as a consequence of Customer’s use of the Azure Services and/or AWS Services and/or GCP Services or the Platform; or 

10.1.7 the gross negligence or willful misconduct of Customer or  any of its Authorized Users.  

10.2 Indemnity by Pump. Pump shall, at its expense, defend indemnify and hold harmless Customer and its Affiliates and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees,  arising from or related to any third-party claim concerning the Platform, or any component thereof infringes any copyright or trade secret of any third party. Pump will have the exclusive right to defend any such claim,  action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise  such claim, action or allegation, except with prior written consent of Pump. In the event any such infringement,  claim, action or allegation is brought or threatened, Pump may, at its sole option and expense:  

10.2.1 procure for Customer the right to continue use of the Platform or infringing part thereof; or 

10.2.2 modify or amend the Platform or infringing part thereof, or replace the Platform or infringing part thereof with other software having substantially the same or  better capabilities.

10.3 Exclusions.  Pump shall have no liability hereunder if the actual or alleged infringement results from  

10.3.1 Customer’s or its Authorized Users’ breach of this Agreement, 

10.3.2 any modification, alteration or addition made to  the Platform or any use thereof, including any combination of the Platform with software or other materials not provided  by Pump, 

10.3.3 Customer’s or its Authorized Users’ failure to use any corrections or modifications made available by  Pump that would not result in any material loss of functionality, 

10.3.4 use of the Platform in a manner or in connection  with a product or data not contemplated by this Agreement, or 

10.3.5 any settlements entered into by Customer or costs incurred by Customer for such claim that are not pre-approved by Pump in writing. 

10.4 Limitation. THIS SECTION STATES THE SOLE AND EXCLUSIVE OBLIGATION OF PUMP AND THE SOLE AND EXCLUSIVE REMEDY FOR CUSTOMER WITH RESPECT TO INFRINGEMENT OF ANY PATENT,  COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.  

10.5 Procedures. Any claim subject to indemnification under this Section will be subject to the following  provisions: 

10.5.1 the indemnifying Party will be given prompt written notice of the claim by the indemnified Party, provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this  Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay; 

10.5.2 the indemnifying  Party will have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified Party may be made without the express written consent of the indemnified Party; and 

10.5.3 the indemnified Party will reasonably cooperate with the indemnifying Party  and its counsel at the indemnifying Party’s cost and expense.  

11. Confidential Information 

11.1 Confidential Treatment. Each Party agrees that all Confidential Information obtained by such Party, its Affiliates, directors, officers, any other employees and any third parties with which it contracts (including in the case of Pump, Subcontractors), is and shall be considered, confidential and proprietary to the Disclosing Party. 

11.2 Ownership of a Party’s Confidential Information.  All Confidential Information shall remain the property of the Disclosing Party, and no rights are granted to the Receiving Party, directly or indirectly, other than the right to use it to the extent reasonably necessary to enable the Receiving Party to carry out the express provisions of this Agreement.

11.3 Degree of Care. The Receiving Party shall protect the confidentiality and integrity of the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own similar information, but in no event less than commercially reasonable care.

11.4 Permissible Disclosure.  Notwithstanding, a receiving Party may disclose such Confidential Information that  is required by law to be disclosed if the receiving Party gives the disclosing Party prompt written notice of such a requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. 

12. Miscellaneous 

12.1 Entire Agreement; Conflict.   This Agreement is the entire agreement between Pump and Customer.  This Agreement supersedes all prior agreements, and all contemporaneous representations, understandings, agreements, or communications between Pump and Customer, whether written or verbal, regarding the subject matter of this Agreement. No modification or amendment of any portion of this Agreement will be effective unless in writing and signed by the Parties to this Agreement.

12.2 Modifications to the Agreement.  We may modify this Agreement at any time by posting a revised version on the Platform or by otherwise notifying you in accordance with the Notice sections, below. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Platform after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Platform regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement. 

12.3 Survival and Termination Obligations.  Immediately upon expiration or termination of this Agreement for  any reason whatsoever, Customer will cease all access to and use of the Platform. Sections 4, 5, 7, 8, 9, 10, 11, 12.6, 12.9, 12.13, 12.14, and 12.16 shall survive any termination or expiration of this Agreement.

12.4 Assignment. No rights under this Agreement may be assigned or otherwise  transferred by Customer in whole or in part.  The entire Agreement  may be assigned if by operation of law, a sale of assets, merger or consolidation, without the prior written consent of the Pump provided Customer provides prompt notice of such assignment or merger transaction upon completion. Pump may assign this Agreement at any time. Subject to the foregoing, this Agreement will be binding upon and will insure to  the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section shall be null and void. 

12.5 Force Majeure. Neither Party will incur any liability to the other Party on account of any loss or damage  resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in  whole or in part, by events, occurrences, or causes beyond the control and without negligence of the Parties. Such  events, occurrences, or causes will include, without limitation, acts of God, strikes, pandemics, actions by foreign state actors, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded. 

12.6 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

12.7 Notice to You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Platform; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Platform will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

12.8 Notice to Pump. To give us notice under this Agreement, you must contact Pump by personal delivery, overnight courier or registered or certified mail to mailing address, as applicable, listed on the Platform at https://www.pump.co/contact. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are received.

12.9 Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either Party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have occurred when a Party knew  or reasonably should have known of the breach or claimed breach. 

12.10 No Waivers. The failure by a party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit such party’s right to enforce such provision at a later time.  All waivers by a party must be provided in a Notice signed by the waiving party to be effective.

12.11 Severability.   If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.   Any invalid or unenforceable portions will be interpreted to effect the  intent of the original portion. If  such  construction is  not  possible, the  invalid  or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.

12.12 Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition of the Platform will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of  Pump to object to such terms, provisions or conditions. 

12.13 Governing Law. This Agreement shall be governed by the laws of the United States and the State of Delaware, without reference to conflict of laws principles. Any dispute between the Parties regarding this Agreement  will be subject to the exclusive venue of the state and federal courts in Delaware. The Parties hereby consent to the exclusive jurisdiction and venue of such courts.

12.14 Arbitration.  Any controversy or claim arising out of or relating to this Agreement including, without limitation, the interpretation or the breach thereof, shall be settled by arbitration in Wilmington, Delaware, in accordance with the rules of the Judicial Arbitration & Mediation Services, Inc. (“JAMS”)  rules then obtaining, and judgment upon the award rendered by a single Arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, this agreement to arbitrate shall not bar either party from seeking temporary or provisional remedies in any Court having jurisdiction thereof. Company and Pump hereby consent and submit to the personal jurisdiction of the United States District Court for Delaware and any Delaware State court of competent jurisdiction in any suit, action or proceeding (other than as provided in the first sentence of this section) arising out of this Agreement.

12.14.1 Pump, at its sole discretion, may elect instead of Arbitration to proceed in small claims court, specifically a Justice of the Peace Civil Court in the State of Delaware of Pump’s choosing. In the case that Pump elects to proceed in small claims court, Company and Pump hereby consent and submit to the personal jurisdiction of the Justice of the Peace Civil Court in the State of Delaware of Pump’s choosing, in any suit, action or proceeding arising out of this Agreement.

12.15 Publicity.  Pump may use Customer’s name and logos on Pump’s website, in press releases and product brochures indicating that Customer is a customer of Pump, subject to Customer consent, which will not be unreasonably withheld. 

12.16 Independent Parties; No Agency. Except with regard to the express authorizations of Pump as provided in Section2, above, nothing contained in this Agreement shall authorize or empower one Party to assume, create, or bind the other Party to any obligation or responsibility whatsoever, expressed or implied, and nothing contained in this Agreement or in the relationship between Pump and Customer shall be deemed to constitute a partnership, joint venture, agency, employment or any other relationship.