These FARO Sphere XG Customer Terms of Service (“Terms of Service”) govern your use of FARO Sphere XG.
You accept these Terms of Service when you (1) click a box indicating acceptance, (2) execute an Order Form that references this Agreement, (3) use free FARO Sphere XG services or (4) use a software application provided via application stores such as Google Play Store or Apple App Store that is fully enabled only in conjunction with using FARO Sphere XG. You are accepting these Terms of Service on behalf of a company or other legal entity, and you represent that you have the legal authority to bind such entity and its Affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, do not accept these Terms of Service and you, your company, and its Affiliates may not use FARO Sphere XG. These Terms apply to all FARO Sphere XG Services, paid for or free.
YOU MAY ALSO NOT USE FARO SPHERE XG IF YOU ARE A COMPETITOR OF FARO OR FOR
MONITORING ITS AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY BENCHMARKING OR COMPETITIVE PURPOSES. You may also not enter into an agreement for the delivery of FARO Sphere XG services if you are not of legal age to enter into a binding contract or are otherwise barred from entering into an agreement for the delivery of FARO Sphere XG services by applicable law, public policy, or other contractual obligation.
These Terms of Services were last updated on March 10, 2025.
1. DEFINITIONS
“Agreement,” “Terms,” or “Terms of Services” means these Terms of Service, the FARO Sphere Data Processing Agreement, and the documents incorporated by reference herein (such as the Documents, Order Forms, FARO Policies, and any other terms mutually agreed upon by the Parties) for the Services, made available in Sphere XG and at https://www.farosphereXG.com/home/legal/terms-of-service.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.
“Beta Services” means functionality that is made available to Customer to try, at Customer’s option, at no additional charge to Customer, which is provided as a beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Content” means information obtained by FARO from publicly available sources or its third-party content providers and made available to Customer through the Services, as more fully described in the Documentation.
“Customer” (“you,” “your,” “yours”) means the business, company, or other legal entity accepting these Terms of Service (and their Affiliates and Users), which you legally represent and are authorized to bind.
“Customer Data” means the data, information, and content uploaded to or otherwise input by or on behalf of Customer or its Users into FARO Sphere XG or imported from the Customer’s systems into FARO Sphere XG.
“Data Processing Agreement” or “DPA” means the Data Processing Agreement, which is hereby incorporated by reference and binding between the Parties, available under https://www.farosphereXG.com/home/legal/terms-of-service, which shall comply with all applicable global privacy laws, including the General Data Protection Regulation.
“Documentation” means the applicable marketing and/or specification information provided by FARO about the Services, including FARO’s privacy, security, compliance, and usage guides and policies, as updated from time to time, available in FARO Sphere XG.“FARO” means the FARO Contracting Entity from the “FARO Contracting Entity, Notices, Governing Law, and Venue” clause herein. “FARO Policies” mean the current version of the FARO policies noted throughout these Terms of Service (such as the FARO Privacy Policy, etc.), which are available on FARO.com, in FARO Sphere, XG and at https://www.farosphereXG.com/home/legal/terms-of-service, which are hereby incorporated by reference.
“Free Services” means Services that FARO makes available to Customer free of monetary charge, such as FARO Sphere XG Base, and including Beta Services.
“Intellectual Property Rights” means all worldwide common law and statutory rights associated with (a) patents and patent applications; (b) copyrights and all other literary property and author rights, including without limitation, copyright applications, copyright registrations, certificates of copyrights and copyrighted interests, and “moral” rights; (c) all rights, title and interest in and to inventions (whether patentable or not in any country) and invention disclosures; (d) trade secrets, know-how, or the protection of confidential information; (e) other proprietary rights related to intangible intellectual property; (f) analogous rights to the rights set forth in (a)-(e), and (g) all divisions, continuations, renewals, reissuances, and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired. “Background Intellectual Property Rights” means the Intellectual Property Rights to technology acquired, conceived, created, or developed by a Party (i) prior to the date of the Agreement or (ii) after the date of the Agreement and independent of the activities under the Agreement. “Foreground Intellectual Property Rights” means the Intellectual property Rights to technology (1) conceived, created, or developed solely by either Party dependent of the activities under the Agreement or (2) conceived, created, or developed jointly by the Parties in the course of the activities under the Agreement.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, but not limited to, viruses, worms, time bombs, and Trojan horses.
“Marketplace” means an online directory, catalog, or marketplace of applications that interoperate with the Services, including, for example, an app store.
“Non-FARO Application” means a product or service not manufactured by FARO (including, but not limited to, hardware, implementation, or other consulting services or software (such as a software application functionality)) that interoperates with a Service, however provided (such as by FARO, Customer, a third party, or a Marketplace).
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and FARO (however provided, such as through the FARO Sphere XG platform, a FARO sales representative, or a Customer purchase order expressly accepted by FARO in signed writing). For the avoidance of doubt, these Terms of Service are not an Order Form.
“Party” means FARO and the Customer (and their Affiliates), which are together, the Parties.
“Purchased Services” means Services which Customer purchases through an Order Form and provides monetary consideration to FARO, as distinguished from Free Services.
“Services” means FARO Sphere XG, including the (i) the FARO Sphere XG products and services (such as software, software applications provided via application stores such as Google Play Store or Apple App Store, services, consulting, scanning, training, calibration, etc.) that are ordered by Customer under an Order Form, or (ii) Free Services (which include Beta Services), or (iii) automatic modules provided as part of access to FARO Sphere XG, such as the FARO Knowledge Base; including associated FARO offline or mobile components; and as further described in the Documentation. Services does not include Content or Non-FARO Applications. For the avoidance of doubt, hardware is not Services nor is hardware covered under this Agreement.
“Sphere XG”, “FARO Sphere XG”, “FARO Sphere” or “Sphere” means the FARO Sphere XG platform and its software-as-a-service products, provided free or as specifically named offerings, tiers, and bundles, as well as software applications provided via application stores such as Google Play Store or Apple App Store that are fully enabled only in conjunction with using FARO Sphere XG.
“Usage Limitations” means the storage or use limits imposed by FARO, such as expressly stated in an Order Form, as part of a product offering structure, or in the Documentation, such as number of Users, number of projects, and data storage caps, and other limits applicable to Customer’s use, which are set and enforced at FARO’s sole discretion.
“User” means an individual or entity who is authorized by Customer to use a Service, for example, employees, consultants, contractors, Affiliates, and agents of Customer, and third parties with which Customer transacts business, including (i) guest users and (ii) anyone granted access to the Services by Customer in accordance with the terms herein (often including Customer’s need-to-know consultants or distributors).
2. FARO RESPONSIBILITIES
2.1. Provision of Purchased Services. FARO shall (a) make the Purchased Services and Content available to Customer pursuant to this Agreement, the applicable Order Forms, and Documentation, and (b) provide applicable FARO standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support, if purchased.
2.2. Protection of Customer Data. FARO shall maintain appropriate administrative, physical, and technical safeguards, for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards shall include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). However, Customer acknowledges that no security measures are 100% effective, and some communications have inherent insecurities. Also, Customer shall avoid capturing personal identifiers and shall avoid entering personally identifiable information into the FARO Sphere XG platform. Specifically, Sphere XG offers blurring functionalities for visual elements that are potential personal identifiers (e.g., human faces, distinguishable marks on bodies, license plates, name tags, diplomas) with continuously increasing, but not with 100% effectiveness. Customer is solely responsible for conducting a final manual redaction and for eliminating potential personal identifiers before using or publishing scans or pictures. FARO shall have no obligation to keep, store or recover at any time any Customer Data for Customers or Users who do not pass FARO’s compliance check, including but not limited to compliance checks for Export Compliance and Anti-Corruption as referred to in 12.1. and 12.2. below, FARO shall have no obligation to provide notice when not keeping, storing, or recovering such data, and FARO shall not be liable to any Customer or User for not keeping storing, or recovering such data. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom, and Switzerland are processed by FARO, the Standard Contractual Clauses shall apply, as further set forth in the Data Processing Agreement between Customer and FARO and the Intracompany Data Transfer Agreement in place between FARO’s global entities located within and outside of the EEA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and it or an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the DPA, including the Standard Contractual Clauses and any DPA appendices. The Parties shall periodically update the DPA as required by FARO or to comply with applicable law.
2.3. Access to Customer Data at Termination or Expiration. Customer Data shall only be exportable in general industry standard formats and not in any FARO-specific format. Any Customer Data that discloses proprietary FARO Sphere XG solution or data design schemas and related metadata information shall not be exportable.
2.3.1. Access to Customer Data at Termination or Expiration. At the end of the Free Services term, all Customer entries into the Free Services, including Customer Data and any customizations made to the Free Services, will be permanently lost unless Customer (1) purchases a subscription to the same Services as those covered by the Free Services, (2) purchases applicable upgraded Services, or (3) exports such Customer Data before the end of Free Services term. Customer can only transfer Customer Data entered or customizations made during Free Services to a Purchased Service version. CUSTOMER UNDERSTANDS AND AGREES THAT THEY MUST EXPORT ANY CUSTOMER DATA OUT OF THE FREE SERVICES OR PURCHASE AN EQUIVALENT OR GREATER SERVICE BEFORE THE END OF THE FREE SERVICE TERM OR ALL CUSTOMER DATA IN THE FREE SERVICE WILL BE PERMANENTLY LOST AT THE END OF THE FREE SERVICE TERM AND UNRECOVERABLE. However, if FARO terminates Customer’s account during a Free Services term at FARO’s convenience and without cause, FARO will provide Customer a reasonable opportunity to retrieve its Customer Data.
2.3.2. Access to Customer Data at Termination or Expiration of Purchased Services. At the end of the Purchased Services term, all Customer entries into the Purchased Services, including Customer Data and any customizations made to the Purchased Services, will be permanently lost unless Customer exports such before the end of the Purchased Services term. CUSTOMER UNDERSTANDS AND AGREES THAT THEY MUST EXPORT ANY CUSTOMER DATA OUT OF THE PURCHASED SERVICES OR ALL CUSTOMER DATA IN THE PURCHASED SERVICE WILL BE PERMANENTLY LOST AT THE END OF THE PURCHASED SERVICE TERM AND UNRECOVERABLE. However, if FARO terminates Customer’s account during a Purchased Services term at FARO’s convenience and without cause, FARO will provide Customer a reasonable opportunity to retrieve its Customer Data after such termination.
2.3.3. Additional Export of Customer Data. Customer and FARO may also mutually negotiate for FARO to facilitate the export of Customer Data for Customer, at the sole discretion of both Parties. Such would be mutually negotiated in a separate signed written contract at the time, including format and scope.
2.4. FARO Personnel. FARO shall be responsible for the performance of its personnel (including its employees and contractors) and their compliance with FARO’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.5. Free Services.
2.5.1. Use of Free Services. FARO may make Free Services available to Customer. Customer’s use of any Free Services is subject to this Agreement plus any additional terms on any beta or trial registration Web Site or Order Form terms required to sign up for the Free Services, which are hereby incorporated by reference. Free Services shall be terminated at (a) the end of the beta or free trial period for which Customer registered or was granted use of the Free Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by FARO of Customer’s Free Services. The Usage Limitation for Free Services are, at a minimum, one (1) User seat and twenty GB (20 gigabytes) of data storage, which are set and enforced at FARO’s sole discretion. Usage over these limits requires Customer’s purchase of the Services. Customer agrees that FARO, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof at any time. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that FARO will not be liable to Customer or Customer’s Affiliates for such termination.
2.5.2. FARO’s Limitation of Liability for Free Services. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” CLAUSE AND “INDEMNIFICATION BY FARO” CLAUSE, ALL FREE SERVICES ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTY WHATSOEVER, AND FARO SHALL HAVE NO WARRANTY OR INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO FREE SERVICES. IF SUCH WAIVER IS PROHIBITED BY APPLICABLE LAW, FARO’S LIABILITY WITH RESPECT TO FREE SERVICES SHALL NOT EXCEED ONE THOUSAND U.S. DOLLARS ($1,000.00 US). WITHOUT LIMITING THE FOREGOING, FARO DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR SECURE FROM CYBER THREATS AND/OR (C) FREE SERVICES CONTENT WILL BE ACCURATE. For the avoidance of doubt, Beta Services and trial use of the Services are Free Services.
2.5.3. Customer’s Liability for Free Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” CLAUSE BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO FARO AND FARO’S AFFILIATES FOR ANY DAMAGES TO FARO ARISING OUT OF CUSTOMER’S USE OF FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT DURING ITS USE OF THE FREE SERVICES, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE DOCUMENTATION TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING AN ORDER FORM PURCHASE OR USING ANY FREE SERVICES.
2.6. Performance and Updates.
2.6.1. Upgrades. Customer may purchase commercially available Service upgrades from FARO. FARO is not obligated to provide upgrades to Customer, unless express in an Order Form.
2.6.2. Improvement Updates. FARO is not obligated to provide updates to the Services. FARO may modify the Services and their functionalities and provide voluntary improvement software updates at any time. Customer shall not object to or have recourse for any improvement updates.
2.6.3. Detrimental Updates.
2.6.3.1. Detrimental Updates at FARO’s Discretion. In the case of a modification to the Customers detriment at FARO’s discretion, FARO will advise Customer per the “Manner of Giving Notice” clause herein or by a clear notice on FARO Sphere XG. In the case of a detrimental modification made at FARO’s discretion, Customer may object to the modification within thirty (30) days of the notice of change. If Customer objects to the detrimental modification, either Party may terminate this Agreement for convenience with one (1) month notice to the end of a calendar month and FARO shall refund Customer any prepaid fees for any pro rata, unused portion of a subscription term. If Customer continues to use the Services after the notice of change timeframe, the modified Service shall be deemed accepted.
2.6.3.2. Detrimental Updates not at FARO’s Discretion and Business Changes. In the case of a modification to the Services to the Customers detriment not at the discretion of FARO, such as to comply with applicable law, pending the Service not failing its intended purpose, no cancellation or objection or refund opportunity shall be made available to Customer. Also, FARO shall not be obligated to notify Customer of any changes in FARO’s manufacturing or business, such as notification or approval of change of manufacturing process, location, or product changes or end of life offerings.
2.7. Monitoring. As part of FARO’s dedication to providing a continually improving Customer experience, and as a condition precedent to using FARO Sphere XG and the Services, Customer consents to FARO’s gathering, and having gathered, use information about Customer’s interactions with FARO Sphere XG and the Services. Some FARO Sphere XG Services depend on such interaction, and such will help FARO provide ongoing product and service improvements. As between the parties, FARO shall own all right, title and interest in and to all data generated by the FARO Sphere XG Platform or collected by FARO relating to the operation of the FARO Sphere XG Platform and Customer’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, usage data, such as when and how often Customer’s use the FARO Sphere XG Platform, which features are used the most often, and error reports. The use of any gathered information shall be in accordance with FARO’s Privacy Policy (located at FARO.com, which is hereby incorporated by reference). Information will be aggregated or anonymized for confidentiality purposes when appropriate and when contractually or legally required. Customer may opt out of such use in the FARO Sphere XG Platform. FARO shall not sell Customer Data that can be linked to Customer’s personal data.
As a matter of principle, FARO ensures compliance with EU/U.K. Standard Contractual Clauses as well as other cross-border privacy compliance standards and may offer regional data hosting opportunities, such as EU-Hosting.
In accordance with these Terms of Service and the DPA, Customer consents to FARO’s use of third party processors for such user monitoring (including ChurnZero, Amplitude, UXCam, and Sentry IO):
| ChurnZero | Amplitude | UXCam | Sentry.io |
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2.8 2.8. Suspension of Services. FARO may suspend Customer’s access to FARO Sphere XG, the Services, and Customer Data in the case of Customer’s violation of law or violation of this Agreement. Access shall be restored when any violation has ceased and the danger of repetition is eliminated. FARO may delete any Customer Data that is in violation of applicable law, without warning or opportunity for retrieval.
3.USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying Purchased Services subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by FARO regarding future functionality or features.
3.2. Usage Limitations. FARO may monitor Customer’s usage, including number of users, number of projects, and data usage. Customer shall monitor and abide by Usage Limitations. FARO shall not be obligated to monitor Customer’s compliance with Usage Limitations nor notify or prohibit Customer from overages. As a courtesy, FARO may prevent or notify Customer of an overage. Also, as a courtesy, if Customer commits an overage, FARO may help Customer reduce Customer’s usage to within allowed limits. If Customer is unable or unwilling to abide by Usage Limitations, Customer shall execute an Order Form for additional quantities of the applicable Services promptly upon FARO’s request and shall pay any invoice for excess use in accordance with the “Invoicing and Payment” clause below. If Customer maintains payment information on file with FARO for annual autorenewals, Customer hereby approves that any use Usage Limitation overages may be charged to such payment method without further notice at then current rates. Usage does not include archived or deleted Customer Data.
3.3. Customer Responsibilities and Consequences for Failure. Customer shall (a) pay FARO as agreed in these Terms and any Order Form, (b) be responsible for Users’ compliance with this Agreement, and shall promptly notify FARO of any known or anticipated breach of this Agreement, such as Customer’s breach of the “Confidentiality” clause, (b) between FARO and customer, be solely responsible for Customer Data, including its format, integrity, accuracy, quality, maintenance, and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-FARO Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify FARO promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, the FARO Policies, and applicable laws and government regulations, including any applicable export laws, (e) comply with any terms of service of any Non-FARO Applications with which Customer uses Services or Content, and (f) remove or export all Customer Data at the termination or expiration of this Agreement before its deletion by FARO in accordance with the “Free Services” clause and the “Access to Customer Data at Termination or Expiration” clause herein. Customer acknowledges and agrees that FARO shall not, and has no obligation to, monitor or edit the Customer Data. FARO may, at FARO’s sole discretion, suspend any Services due to actual or possible breach of the foregoing by Customer or Users, without prior notice or possibility of export or recovery; however, FARO will use commercially reasonable efforts to provide Customer with notice and an opportunity of export or remedy as appropriate.
3.4. Restrictions on Customer’s Use. Customer shall not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates internal business use and purposes, unless expressly provided in the Documentation or an Order Form noting specific exception to this clause, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third-party privacy rights, (d) store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of FARO Intellectual Property Rights, except as permitted under this Agreement, (h) modify, copy, or create derivative works based on a Service or any part, feature, function, or user interface thereof, (i) copy Content, except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) use any automated means to access or manage the Services (including agents, robots, scripts, or spiders), or (l) except to the extent permitted by applicable law, (l) violate any applicable law or infringe upon or misappropriate the intellectual property of any third party, or (m) (1) disassemble, reverse engineer, or decompile a Service or Content or (2) access it to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions, or graphics of the Service, (C) copy any ideas, features, functions or graphics of the Service, or (D) determine whether the Services are within the scope of any patent.
3.5. Users and Guest Access. Some Services shall expressly allow Customer to grant guest access to the Services to other guest Users. Customer shall be fully responsible for any User access, acts, or omissions, including guest access which Customer grants to the Services. Guest Users shall be Customer’s Users. Customer shall only responsibly grant guest access to the Services. Customer shall not grant guest access to the Services to any competitor of FARO, or any member named on any U.S. or E.U. government denied-party, sanctions or embargoes lists. Customer shall take full responsibility for Users and shall be liable for User acts or omissions as if those of Customer directly. As Customer is fully responsible for granting guest access to the Services, Customer shall defend, indemnify, and hold harmless FARO against any claim, damages, or costs, including reasonable attorney fees, suffered by FARO in relation to Customer’s Users (which includes guest access granted by Customer).
3.6. Removal of Content, Customer Data, and Non-FARO Applications. If Customer receives notice that Content, Customer Data, or a Non-FARO Application must be removed, modified, and/or disabled, Customer shall promptly do so. If such notification is not from FARO, Customer shall promptly notify FARO of the request. If Customer does not take the required action, or if in FARO’s judgment continued violation is likely to reoccur, FARO may disable the applicable Content, Customer Data, Service, and/or Non-FARO Application, without prior notice and without possibility of export or recovery. If requested by FARO, Customer shall confirm such deletion and discontinuance of use in writing, and FARO shall be authorized to provide a copy of such confirmation to any third-party claimant or governmental authority, as applicable. In addition, FARO may discontinue Customer’s access to the violative Content, Customer Data, or Non-FARO Application through the Services.
4.NON-FARO APPLICATIONS
4.1. Non-FARO Applications. Any Customer use of Non-FARO Applications, and any exchange of data between Customer and any Non-FARO provider, product, or service, is solely between Customer and the Non-FARO provider. Unless expressly provided in an Order Form noting specific exception to this clause, FARO does not warrant or support Non-FARO Applications, whether provided by FARO or designated by FARO as “certified” or otherwise. FARO is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by Non-FARO Applications or any Non-FARO provider.
4.2. Integration with Non-FARO Applications. The Services may contain features designed to interoperate with Non-FARO Applications. FARO cannot guarantee the continued availability of such Service features as, for example and without limitation, the provider of a Non-FARO Application can cease to make the Non-FARO Application available. FARO may cease providing interoperability with Non-FARO Applications, at any time, without warning or entitling Customer to any refund, credit, or compensation.
5. FEES AND PAYMENT
5.1. Fees. Customer shall pay all fees specified in Order Forms and according to the terms herein. Except as otherwise noted herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. FARO shall accept payment, as chosen by FARO and at FARO’s sole discretion, from check, wire transfer, or credit card. FARO shall not accept debit wire or electric debit payment. If the chosen and approved payment method is a wire transfer, Customer shall be solely responsible for ensuring that FARO’s wire transfer instructions are followed. Payment to FARO shall occur at receipt of cleared funds by FARO, not at submission of payment by Customer. If the chosen and approved payment method is a credit card, Customer shall provide FARO with valid and updated credit card information on an on-going basis. Customer authorizes FARO to charge such credit card for all Purchased Services listed in an Order Form, for both the initial subscription term and any automatic renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” clause. Payments and charges shall be made in advance, annually, or in accordance with the frequency stated in the Order Form. Customer agrees that no additional authorization will be requested or required for FARO’s recurring use of Customer’s credit card for the processing of payments in accordance with this Agreement, including subsequent term billings. If the Order Form specifies that payment will be by a method other than a credit card, FARO shall invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due NET 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to FARO and notifying FARO of any changes to such information. Subsequent auto renewals shall be billed at the then-current rates, notwithstanding any promotional, discounted, bundle, or one-time pricing possibly applied for the initial subscription term. When able, FARO will notify Customer of rebilling occurring, as best as commercially able, thirty (30) days prior to subscription rebilling. No “most favored” customer or country pricing shall be offered by FARO. Payments to FARO shall be made in the currency in which FARO quotes any Services.
5.3. Overdue Charges. If any invoiced amount is not received by FARO by the due date, then, without limiting FARO’s rights or remedies and without further notice, (a) those charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) FARO may condition future subscription renewals and Order Forms on adjusted payment terms at FARO’s discretion. If any amounts are due and owing FARO, FARO may apply any payments to any outstanding debts.
5.4. Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement with FARO is thirty (30) days or more overdue, FARO may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations so that all obligations become immediately due and payable, and FARO shall suspend Services until such amounts are paid in full. When able, FARO shall give Customer at least ten (10) days’ prior notice that its account is overdue in accordance with the “Manner of Giving Notice” clause below before suspending services to Customer.
5.5. Payment Disputes. FARO shall not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” clause above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6. Taxes. FARO's fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer shall pay all Taxes associated with its purchases hereunder. If FARO has the legal obligation to pay or collect Taxes for which Customer is responsible under this clause, FARO shall invoice Customer and Customer shall pay that amount, unless Customer provides FARO with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes on any Services quote are an estimate for budgetary purposes and are not binding. Final Taxes shall be based on applicable tax rates as of and charged on the date of invoice. For clarity, FARO is solely responsible for taxes assessable against it based on its income, property, and employees.
5.7. Price Adjustments. FARO shall have the right to raise adequately the fees for the contractual services as compensation for personnel or other cost increases of FARO. In this case FARO will inform Customer by letter or email about the increase of fees. The increase of fees shall not apply to the period that Customer had already made payments. The same applies mutatis mutandis in the event of personnel or other cost decrease. In case the increase of the fees reaches an amount equal or greater than 20% of the previous fee, Customer shall be entitled to terminate this Agreement at the end of the initial or renewal terms pursuant to Section 11.2 below, as applicable, by written notice given at least one (1) month prior to the end of any such period. If Customer exercises this right of termination, the previous fees will be invoiced until the termination becomes effective.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, FARO, its Affiliates, its licensors, and Content providers own and reserve all their right, title, and interest in and to FARO Sphere XG, the Services, and the Content, including all their related Intellectual Property Rights, (including, but not limited to, all underlying source code, algorithms, models, features, or functionality, and any FARO software, technology, materials, and information). No Intellectual Property Rights are granted, transferred, licensed, or assigned to Customer hereunder except as expressly set forth herein.
6.2. Access to and Use of Content. Customer has the right to access and use Content and Services, including the Foreground Intellectual Property Rights embedded therein, subject to the terms of this Agreement, for the Services purchased on a subscription basis in an Order Form.
6.3. License by Customer to FARO. Customer hereby grants FARO, its Affiliates, and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-FARO Applications and program code created by or for Customer using a Service or for use by Customer with the Services, as appropriate for FARO to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-FARO Application with a Service, Customer hereby grants FARO permission to allow the Non-FARO Application and its provider to access Customer Data and information about Customer’s usage of the Non-FARO Application as appropriate for the interoperation of that Non-FARO Application with the Services. Subject to the limited licenses granted herein, FARO acquires no right, title, or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-FARO Application, or such program code. As between the Parties, Customer owns the Customer Data. Customer hereby grants to FARO a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to FARO’s contractors, consultants and service providers providing services on behalf of FARO), non-transferable (subject to the “Assignment” clause) right and license to use, copy, keep, reproduce, modify, display, perform, distribute, transmit, create derivative works of and otherwise use the Customer Data (a) to make available the Services and perform its obligations hereunder, (b) to internally develop and improve products and services, (c) to create aggregated and/or anonymized data from the Customer Data (the “Anonymized Data”), and (d) as required by law or legal process. Neither the Anonymized Data nor any developments or improvements developed through the exercise of rights granted under the foregoing clause constitute Customer Data nor Customer Confidential Information.
6.4. FARO Ownership of Feedback. The Parties agree that FARO owns all Customer feedback on the FARO products or services, such as all suggestions, enhancement requests, recommendations, industry ideas, corrections, or other feedback. Customer hereby assigns such and any associated Foreground Intellectual Property Rights to FARO, without any further obligation to Customer, including without any compensation to Customer of any kind under any circumstances, at the time of development or in the future, and such shall not be considered Customer’s Confidential Information or Customer Data, including feedback conceived, created, or developed by FARO or Customer during or from Customer’s Free Services or Purchased Services, beta testing, improving, providing feedback on, assisting FARO with the development of, use of FARO’s application programming interface (API), or use of the Free Services or Purchased Services. If such cannot be owned by FARO due to applicable law, Customer grants to FARO and its Affiliates a worldwide, perpetual, irrevocable, non-exclusive, transferable, sublicensable (directly and indirectly through multiple tiers), royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of FARO’s or its Affiliates’ Services or products.
6.5. Federal Government End Use Provisions. FARO provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: the Services consist of “commercial items”, as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as limitedly provided in this Agreement and any associated software end user license agreements, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, before, after, or during the Term of this Agreement, that is (a) designated as confidential or (b) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure or (c) is Intellectual Property Rights. Confidential Information of Customer includes Customer Data; Confidential Information of FARO includes information about FARO and FARO’s products and customers, FARO pricing, the Services and Content, the Documentation, and the terms and conditions of this Agreement if uniquely negotiated. Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes. However, Confidential Information does not include any information that, without fraud or violation of an obligation of confidentiality, (i) is or becomes generally known to the public, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party, (iii) is received from a third party without an owed confidentiality obligation, or (iv) was independently developed by the Receiving Party without the use of Confidential Information. The non-disclosure obligations set forth in this “Confidentiality” clause apply to all Confidential Information exchanged between the Parties, including in connection with the evaluation of FARO Sphere XG applications and Free Services. If the Parties have in place any other, valid, and current non-disclosure agreement for the same scope, such shall be read as complimentary and, in the case of conflict, the more conservative obligation shall apply.
7.2. Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect its own confidential information of like kind (but no less than reasonable care). The Receiving Party shall (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) not disclose the Confidential Information to others and shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors, and professional advisers who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party with terms at least as strict as those herein (or, in the case of professional advisers, who are bound by other ethical confidentiality duties), except as otherwise authorized by the Disclosing Party in prior writing. Neither Party shall disclose the terms of this Agreement (including pricing) to any third party, other than its Affiliates, legal counsel, and accountants with an independent obligation of confidentiality, except with the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel, or accountants shall remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with the obligations herein. Nonetheless, FARO may disclose the terms of this Agreement to a subcontractor or Non-FARO Application provider to the extent necessary to perform FARO’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. In no event shall FARO’s Confidential Information, nor access to FARO Sphere XG, be disclosed or made available to a competitor of FARO’s, even if such would otherwise be allowed per the terms of this Agreement.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Disclosure shall be limited, to the extent possible.
7.4. Personal Data. Customer hereby consents to FARO using Customer’s personal information to provide Customer with the Services and inform Customer about current and new Service offerings. FARO shall implement and maintain, in accordance with all applicable privacy law, including the California Consumer Privacy Act and the General Data Protection Act, technology and security policies, rules, and measures to protect the personal data that FARO collects from unauthorized access, improper use, alteration, unlawful or accidental destruction, and accidental loss. For detailed information, please see the Data Protection Agreement. Customer warrants that Customer (a) has permission of all individuals (where required), be it employees or customers of Customer or employees of Customer’s customers or other persons, to possess the personal data, and (b) is otherwise justified to (i) transmit this personal data to FARO, and (ii) grant FARO permission to store this personal data on web servers of FARO and on web servers of FARO’s subcontractors (such as Amazon Web Services, Inc.), which Customer hereby grants. Customer also grants that FARO can process this personal data (A) to provide the Services (and therefore that this personal data can be presented to third parties in performance of the Services), and (B) for the purpose of FARO collecting data to continuously provide improved Services and an improved Customer experience. Therefore, Customer undertakes to enter into agreements with its employees and customers relating to the aforementioned. Customer shall defend, indemnify, and hold FARO harmless from and against all liability or claims based on the infringement of personal privacy rights of individuals from or as a consequence of FARO’s permitted use of the personal data as set forth above, which such indemnification shall not apply if the claim is based on FARO’s wanton or grossly negligent breach.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. FARO Warranties. FARO warrants that, during an Order Form term, that (a) FARO will maintain applicable administrative, physical, and technical safeguards for protection of the security and confidentiality of Customer Data, and (b) the Services will perform materially in accordance with the applicable Documentation. Please see the “Termination” and “Refund or Payment upon Termination” clauses for Customer’s sole and exclusive warranty remedy and FARO’s sole and exclusive warranty remedy liability.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FREE SERVICES, INCLUDING BETA SERVICES, ARE PROVIDED “AS IS” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. FARO MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, SECURE FROM CYBER THREATS, OR ERROR- or BUG-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by FARO. FARO shall defend Customer and its Affiliates against any direct damages from any claim, demand, suit, or proceeding made or brought against Customer by a third party (not the Parties nor their employees) alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and shall indemnify Customer from any direct damages, reasonable attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement (approved by FARO in writing) of a Claim Against Customer, provided Customer (a) promptly gives FARO written notice of the Claim Against Customer, (b) gives FARO sole control of the defense and settlement of the Claim Against Customer (except that FARO may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives FARO all reasonable assistance, at FARO’s expense. If FARO receives information about an infringement or misappropriation claim related to a Service, FARO may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching FARO’s warranties under the “FARO Warranties” clause above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer is at all caused by Customer, such from the use or combination of the Services (any part) with software, hardware, data, or processes not provided by FARO, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services for which there is no charge; or (4) a Claim against Customer arises from Customer Data, a Non-FARO Application, or Customer’s act or omissions, such as breach of this Agreement or applicable law. This Section 9.1 states FARO’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
9.2. Indemnification by Customer. Customer shall defend FARO and its Affiliates against any direct damages from any claim, demand, suit, or proceeding made or brought against FARO by a third party (not the Parties nor their employees) (a) alleging that (i) any Customer Data or Customer’s or FARO’s use thereof, (ii) a Non-FARO Application provided by Customer or Customer’s or FARO’s use thereof, or (iii) the combination of a Non-FARO Application provided by Customer and used with the Services, in each case of (i)–(iii), misappropriates or infringes such third party’s intellectual property rights, or (b) arising from Customer’s use of the Services or Content in violation of this Agreement or applicable law (each a “Claim Against FARO”), and shall indemnify FARO from any direct damages, reasonable attorney fees, and costs finally awarded against FARO as a result of, or for any amounts paid by FARO under a settlement (approved by Customer in writing) of a Claim Against FARO, provided FARO (a) promptly gives Customer written notice of the Claim Against FARO, (b) gives Customer sole control of the defense and settlement of the Claim Against FARO (except that Customer may not settle any Claim Against FARO unless it unconditionally releases FARO of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. FARO may participate in the defense or settlement of any Claim Against FARO, at its sole expense, with counsel of its own choosing.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. EXCEPT AS PROHIBITED BY LAW, OR FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS OR FOR CUSTOEMR’S INFRINGEMENT, VIOLATION, OR MISAPPROPRIATION OF FARO’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY, TOGETHER WITH ALL OF ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY AND SHALL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” CLAUSE ABOVE.
10.2. Exclusion of Consequential and Related Damages. EXCEPT AS PROHIBITED BY LAW OR FOR CUSTOMER’S INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF FARO’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, OR ITS AFFILIATES, HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, INCLUDING LOSSES ARISING FROM VIRUSES, RANSOMWARE, OR CYBER-ATTACKS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
10.3. Customer Decisions. Information provided through FARO Sphere XG is for informational purposes. Customer is solely responsible for all decisions regarding the conduct of Customer’s business, and under no circumstances shall FARO be liable for such decisions or the consequences of such decisions, regardless of the extent to which such may be made in reliance on information provided by FARO. Customer is solely responsible for using or publishing scans or pictures with potential personal identifiers and for removing them prior to use or publication.
11. TERM AND TERMINATION
11.1. Term of this Agreement. This Agreement commences, and is effective and binding between Customer and FARO, as of the date Customer’s first accepts these Terms as acceptance is delineated in the preamble (the “Effective Date”) continues until all subscriptions and use have termination or expired in accordance with these Terms.
11.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is longer), unless either Party gives the other written notice of non-renewal (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in an Order Form noting specific exception to this clause, renewal of promotional, discounted, or one-time priced subscriptions shall be at FARO’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term shall result in re-pricing at renewal without regard to the prior term’s pricing. Upon the commencement of any renewal term, this Agreement shall renew on the then-current version of these Terms of Service and such FARO Policies.
11.3. Termination. Either Party may terminate this Agreement for convenience and without cause at any time upon thirty (30) days’ written notice to the other Party. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach that causes substantive harm (if such breach remains uncured at the expiration of such period), or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer for FARO’s cause or by FARO for convenience in accordance with the “Termination” clause above, FARO shall pro-rata refund Customer any prepaid fees covering any unused remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by FARO for Customer’s cause or by Customer for convenience in accordance with the “Termination” clause above, any pre-paid fees shall not be refunded and Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms, to the extent permitted by applicable law. Such prorated refund by FARO or full term payment by Customer for a termination for convenience shall be the termination for convenience fee, which the Parties agree is reasonable. In no event will termination relieve Customer of its obligation to pay any fees owed to FARO for the period prior to the effective date of termination.
11.5. Effects of Termination. The following effects shall be immediate upon any termination or expiration of this Agreement:
(a) Customer and Users (including guest Users) shall immediately cease accessing and using the Services,
(b) Customer shall not be entitled to any kind of compensation for the goodwill connected to the Service that Customer may have created during the use of the Services,
(c) Customer shall immediately return or, if instructed by FARO, destroy all FARO Confidential Information. Unless otherwise allowed or required by applicable law, after thirty (30) days past the termination or expiration of this Agreement, FARO shall erase or destroy all Customer Confidential Information, and
(d) Customer shall remove or export all Customer Data at the termination or expiration of this Agreement before its deletion by FARO in accordance with the “Access to Customer Data at Termination or Expiration” clause herein.
11.6 Other Remedies. Termination of this Agreement shall not limit FARO from pursuing any other remedies available in contract or at law, including injunctive relief, nor shall termination relieve Customer of its obligation to pay any charges to FARO that accrued prior to termination or expiration, provided that FARO has met all its contractual obligations associated with these charges. FARO’s termination of this Agreement shall be without prejudice to FARO’s right to seek compensation for breach of any provision of this Agreement or any other damage of FARO in connection with the use of the Service by Customer.
11.7 Surviving Provisions. The clauses titled “Free Services”, “Restrictions on Customer’s Use”, “Fees and Payment”, “Proprietary Rights and Licenses”, “Confidentiality”, “Disclaimers”, “Limitation of Liability”, “Mutual Indemnification”, “Refund or Payment upon Termination”, “Removal of Content and Non-FARO Applications”, “Surviving Provisions”, “Publicity”, and “General Provisions,” and any clause that continues due to its nature, shall survive termination or expiration of these Terms. The “Protection of Customer Data” clause shall survive termination or expiration of these Terms while FARO retains Customer Data.
12 GENERAL PROVISIONS
12.1 Export Compliance. The Services, Content, other FARO technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions, and deliveries of goods, products, software, technology, or know-how transfer to countries outside the country of sale or to third parties may be prohibited by regulation or applicable law. The Parties represent and warrant that neither Party shall be: (a) located in, or domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. Government embargo or U.S. or EU sanctions (currently, Cuba, Iran, North Korea, Russia, Syria, Venezuela, Kherson, Crimea, Zaporizhzhya, Donetsk, Luhansk regions); and (b) on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted. The Parties shall not export, re-export, import, or transfer any goods, service or other item received from FARO nor grant access to FARO Sphere XG in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo or U.S. or EU sanctions. The Parties shall also not assist or facilitate others in any of the foregoing. The Parties acknowledge and agree to comply with all applicable law, including export and import and economic sanctions laws.
12.2 Anti-Corruption. Neither Party has received nor been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement. This Agreement, including documents incorporated by reference, is the entire agreement between FARO and Customer regarding Customer’s use of FARO Sphere XG and its Services and Content and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Titles and headings of clauses herein are for convenience only and shall not affect the construction of any provision of these Terms.
12.4 Order of Precedence. The Parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation; unless the Parties explicitly state a varying precedence order in written exception to this clause in an Order Form, which shall then control only for that subject and only that Order Form. In the case of conflict between these terms in English and any other language (courtesy translations), the English version shall control.
12.5 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party shall be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.6 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.7 Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Any waiver shall be express in writing.
12.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect.
12.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); however, either Party may assign this Agreement in its entirety (including all Order Forms), without the other Party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all its assets to, or undergoes a change of control, in favor of a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. In the event of such termination for FARO’s sale or transfer, FARO shall pro-rata refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. If both the Customer and the acquirer-in-interest have a Services subscription, the Parties shall negotiate a new, mutual agreement. This Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns as of the Effective Date.
12.10 FARO Contracting Entity, Notices, Governing Law, Venue, and Local Law Requirements. The FARO entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that shall apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have exclusive jurisdiction over any dispute or lawsuit regarding this Agreement, depend on where Customer is domiciled. Days herein shall mean business days
| If Customer is domiciled in: | FARO Entity | Governing law | Exclusive Jurisdiction and Venue |
| AMER Region (North, Central, and South America, and the Caribbean) | FARO Technologies, Inc. | Federal Republic of Germany | United States District Court for the Middle District of Florida, Orlando Division |
| The European Union and the European Free Trade Association (EFTA) and other countries in the EMEA Region | FARO Europe GmbH | Federal Republic of Germany | Stuttgart State Courts, Germany |
| APAC and Oceania Regions (Asian and Oceanian Countries) | FARO Singapore Pte Ltd. | Singapore | Singapore State Courts |
| Specific Requirements if Customer is domiciled in: | Specific Requirement |
| AMER Region (North, Central, and South America, and the Caribbean) | FARO AND CUSTOMER HEREBY IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, UNDER, OR IN CONNECTION WITH AN ORDER FORM, SERVICES, OR THESE TERMS AND CONDITIONS, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENT, OR ACTION RELATED THERETO OR HERETO. |
| The European Union and the European Free Trade Association (EFTA) and other countries in the EMEA Region |
|
Jurisdiction and venue shall be regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any claim, action, suit, or other proceeding initiated by Customer in connection with FARO Sphere XG, the Services, a FARO product, or this Agreement must be brought within one (1) year after the cause.
12.11 Publicity, Branding, and Reviews. Customer shall not use FARO’s branding or information made available in FARO Sphere XG (including, without limitation, FARO’s name, logo, training materials, marketing material, implementation documentation, white papers, etc.) without FARO’s prior approval in writing (email acceptable) at the time of use or publication. If FARO does grant Customer permission to use FARO’s branding or information, Customer shall only use such in accordance with applicable intellectual property law and FARO’s then-current branding policies. If Customer provides FARO with any references (such as joint white papers, quotes, recommendations, reviews, etc.) such shall be owned wholly and hereby assigned jointly to FARO and may be unlimitedly used by FARO in any manner, in perpetuity and including after termination or expiration of this Agreement. FARO is permitted to use Customer’s name and logo to list Customer as a customer in FARO’s external communications, marketing materials, and on FARO’s Web site.
12.12 Force Majeure. FARO is released of its obligation of performance hereunder and shall be free from liability to the extent such default is due to a cause beyond FARO’s control (a “Force Majeure”), including, but not limited to, pandemic (including COVID 19 and its variants), war, riots, cardinal modifications of law, natural disasters, failures of communication networks or gateways of third party carriers, regulatory actions, and/or other technical dysfunctions insofar as FARO is not be responsible for them, especially water ingress, power blackouts and disruptions or destruction of data lines. Failure to pay shall not be excused by a Force Majeure.
12.13 Amendments and Drafting. These Terms shall not be construed more strictly against one Party than another as a result of one Party having drafted said instrument. These Terms may only be amended by mutual agreement of the Parties, in signed writing. No regular practice or method of dealing between the Parties shall modify, interpret, supplement, or alter these Terms in any way. Each Party has had the opportunity to consult with counsel in the negotiation of these Terms. FARO may, from time to time, amend these Terms and the FARO Policies, and shall post such amended terms at https://www.farosphereXG.com/home/legal/terms-of-service, noting the date of the last such amendment. Unless Customer objects to an updated set of Terms or FARO Policies within thirty (30) days of posting, such shall be deemed accepted by Customer.
12.14 Non-Exclusivity. These terms are non-exclusive and do not restrict or prevent FARO in any way from (a) entering into similar relationships with third parties and/or (b) providing similar or identical materials, information, data, products, services, or technologies to other parties.
Last Review Date: 03.2025
Questions? Email Sphere.ToS@FARO.com