Version 1.2 — Effective December 1, 2018
Summary of Changes: Added definition for Futurae Administrative Console; Update customer responsibilities for choosing passwords; Added paragraph about DPA; Added paragraph about SMS and phone call price amendments
YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE FUTURAE PLATFORM (AS DEFINED BELOW). BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE FUTURAE PLATFORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE FUTURAE PLATFORM IF YOU ARE A FUTURAE COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF FUTURAE.
If you register for a Free Trial, the Terms will also govern your use of the Futurae Platform during the trial period.
Futurae may amend these Terms from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective as per the effective date stated in these Terms (the “Proposed Amendment Date”) unless Customer rejects the amendment in writing (an email to email@example.com is sufficient) within 30 days after receiving the notice from Futurae. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Futurae Platform following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
To the extent that Futurae will process Personal Data of Users that are located in the European Economic Area under the Agreement, Futurae and Customer shall enter into the Data Processing Addendum located at https://www.futurae.com/legal/dpa (the “DPA”), which Customer must download and sign according to the instructions contained in the DPA. The DPA shall apply in addition to the Agreement.
1.1. “Affiliate” means any legal entity in which Customer, directly or indirectly controls more than 50% of the voting rights or shares. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
1.2. “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.3. “Documentation” means the online documentation for integrating and using the Futurae Platform, accessible via the Futurae website, as updated from time to time.
1.4. “Effective Date” means the date that Customer signs the applicable Order Form.
1.5. “Free Trial” means a no-cost trial or evaluation of the Futurae Platform for which Customer may register with Futurae via Order Form or online via our website. Additional terms and conditions applicable to a Free Trial may appear on the trial registration web page, which are incorporated into this Agreement by reference and are legally binding.
1.6. “Futurae Administrative Console” or “Administrative Console” means the Web-based functionality within the Futurae Service which allows Customer to access User administration, security configuration, billing information, analytics and other administrative functions for their accounts and where Customer shall receive updates or notifications for their accounts and the Futurae Service.
1.7. “Futurae Platform” means the Futurae SDK and the Futurae Service.
1.8. “Futurae SDK” means any and all software development kit (SDK) provided or managed by Futurae under an Order Form.
1.9. “Futurae Service” or “Service” means the online, Web-based services, including associated application programming interfaces (APIs), the Administrative Console and the Futurae mobile applications, provided or managed by Futurae under an Order Form.
1.10. “Order Form” means the ordering documents (including those associated with online commerce) representing a purchase of the Futurae Platform that are executed hereunder and that specify, among other things, the number of subscriptions ordered, the Subscription Term, applicable fees, and applicable subscription tier of Technical Support.
1.11. “Purchased Subscription” means the Futurae Platform subscription that Customer purchases under an Order Form, as distinguished from that provided pursuant to a Free Trial.
1.12. “Service Attributes” means Service usage data related to Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
1.13. “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form. The Subscription Term for Free Trials ends after the agreed term or at the start date of any Purchased Subscription subscriptions ordered by Customer.
1.14. “Technical Support” means the trouble handling and break/fix support services and assistance provided by Futurae. Futurae offers second level of support, the first level being the support offered by the Customer to its Users. Futurae offers varying Technical Support subscription tiers.
1.15. “User” means any individual whom Customer enables to use the Service, including the Administrative Console.
2.1.1. Provision of Service. Futurae shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and all Order Forms executed hereunder. During the term of this Agreement, (i) the Service shall perform in accordance with the Documentation, and (ii) the functionality of the Service will not be decreased from that available as of the Effective Date. Customer agrees that its purchase is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by Futurae with respect to future functionality or features.
2.1.2. Minimum System Requirements. Customer recognizes and agrees that in order to utilize the Service certain minimum system requirements exist, and can be found in the Documentation.
2.1.3. Service Level Agreement. Futurae warrants the availability of the Service in accordance with the Service Level Agreement further described at https://www.futurae.com/legal/sla.
2.2.1. Futurae Responsibilities. Futurae shall use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, as further set forth and described in the SLA. As part of the Service, Futurae agrees to provide Customer with Technical Support consistent with such support subscription tier purchased by Customer. Futurae shall constantly develop and improve the Service through ongoing updates and upgrades. Futurae shall continuously monitor the functionality of the software and shall eliminate any software errors according to the technical possibilities. In particular, an error exists if the software is not functioning as specified in the service description, delivers incorrect results, or does not function properly in any other way, making the use of the software impossible or considerably restricted.
2.2.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Futurae promptly of any such unauthorized use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Service; and (iv) procure that Users safeguard their accounts, use strong passwords and limit their use to each specific account. Futurae will not be liable for any loss or damage arising from failure to comply with the above.
2.2.3. Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) knowingly send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks: or (vii) use the Service in excess of the licensed quantity as set forth in the applicable Order Form. At all times Customer remains responsible for Affiliates’ use of the Service and related Documentation. A breach of the Agreement by a Customer Affiliate shall be considered a breach by Customer hereunder.
2.2.4. Third Party Services. Use of the Service may require Users to install Futurae software on their mobile devices, which use shall be subject to this Agreement. Customer’s use of third party products or services that are not licensed to Customer directly by Futurae (“Third Party Services”) shall be governed solely by the terms and conditions applicable to such Third Party Services, as agreed to between Customer and the third party. Futurae does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Services, including without limitation, the privacy practices, data security processes or other policies related to Third Party Services. Customer agrees to waive any claim against Futurae with respect to any Third Party Services.
2.2.5. Users’ Personal Information. Customer acknowledges that the Service will require Users to share with Futurae certain information which may include personal information regarding Users (such as usernames, Futurae admin panel passwords, email address and/or phone number) solely for the purposes of providing and improving the Service. Prior to authorizing an individual to become a User, Customer is fully responsible for obtaining the consent of that individual, in accordance with applicable law, to the use of his/her information by Futurae. Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become a User.
2.2.6. Users’ Compliance. Customer will be fully responsible for Users’ compliance with this Agreement and any breach of this Agreement by a User shall be deemed to be a breach by Customer. Futurae’s relationship is with Customer and not individual Users or third parties using the Service through Customer, and Customer will address all claims raised by its Users, and third parties using the Service through Customer, directly with Futurae. Customer must ensure that all third parties that utilize the Service through Customer agree (a) to use the Service in full compliance with this Agreement, and (b) to the extent permitted by applicable law, to waive any and all claims directly against Futurae related to the Service.
2.3.1. Protection of Customer Data. Futurae has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data. Futurae shall not be responsible for loss of data transmitted on networks not owned or operated by Futurae, including the Internet.
2.3.2. Use of Service Attributes and Anonymized Data. Futurae may process, use and share certain Service Attributes for internal business purposes, for example, to support proper functioning of the Service, to provide Customer with support services and to investigate fraud, abuse or violations of this Agreement. Futurae may also process, share, reproduce, or otherwise use Service Attributes and Customer Data in the form of Anonymized Data in any way, in Futurae’s sole discretion. “Anonymized Data” means Service Attributes and/or Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.
2.4.1. Futurae Service License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Futurae hereby grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable right to access and use the Service for its internal business purposes and otherwise in accordance with the terms of this Agreement. Futurae reserves the right, with reasonable notice to Customer, to audit Customer’s use of the Service no more than once each calendar year to ensure compliance with the terms of the Agreement.
2.4.2. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or Futurae Technology; (ii) allow non-Users to access the Futurae Services without sufficient Futurae licenses; (iii) access the Service via any sort of ‘bot’ or other malicious piece of software; or (iv) disassemble, reverse engineer, or decompile the Service or Futurae Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
2.4.3. Customer Data. As between Futurae and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement.
2.5.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Futurae represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the Futurae Technology to grant the rights and licenses granted herein; and (iii) the Service and Futurae Technology do not infringe any intellectual property rights of any third party.
2.5.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Futurae MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FUTURAE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
3.1.1. Futurae SDK License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Futurae hereby grants Customer a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable license to use and reproduce the Futurae SDK for installation on Customer owned development stations for use by Customer employees and contractors, solely for the purposes of developing and testing applications that operate on or in connection with the Futurae Service (“Customer Applications”). The Futurae SDK may contain certain open source software and is licensed pursuant to the applicable open source licenses specified in the documentation and is provided WITHOUT ANY WARRANTY. The Futurae SDK is so licensed, not sold. Futurae reserves the right, with reasonable notice to Customer, to audit Customer’s use of the Futurae SDK no more than once each calendar year to ensure compliance with the terms of the Agreement.
3.1.2. Restrictions. Customer has no right to use or reproduce the Futurae SDK except as expressly set forth in Section 3.1.1 above. Customer acknowledges and agrees that portions of the Futurae SDK, including but not limited to code in any form (e.g. source code or precompiled code), if any, and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Futurae and its licensors. Except to the extent the following prohibitions may be prohibited by local law, Customer may not: (a) modify, adapt, decompile, disassemble, or reverse engineer the Futurae SDK; (b) allow any third party to use or have access to the Futurae SDK or Documentation, except for an outsourced service provider who agrees to be bound by this Agreement; (c) make the Futurae SDK available over the Internet or similar networking technology; (d) use, evaluate or view the Futurae SDK or Documentation for purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, which performs functions similar to the functions performed by the Futurae Platform; or (e) sublicense the Futurae SDK to any third party. Customer will not use the Futurae SDK to perform comparisons or other “benchmarking” activities against products that are competitive with the Futurae SDK or the Futurae Service. At all times Customer remains responsible for Affiliates’ use of the Futurae SDK and related documentation. A breach of the Agreement by a Customer Affiliate shall be considered a breach by Customer hereunder. Customer will reproduce all of Futurae’s and its licensor’s copyright notices and any other proprietary rights notices on all copies of the Futurae SDK that Customer makes hereunder.
Customer agrees (i) to use the Futurae SDK and write applications only for purposes that are permitted by this Agreement and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software); (ii) that if Customer uses the Futurae SDK to develop applications for general public users, it will protect the privacy and legal rights of those users and store any personal or sensitive information provided by users securely; (iii) that Customer is solely responsible for (and that Futurae has no responsibility to Customer or to any third party for) any breach of its obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Futurae or any third party may suffer) of any such breach.
3.2.1. The Futurae SDK is provided “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FUTURAE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
4.1.1. Reservation of Rights. Customer acknowledges (a) that in providing the Futurae Platform, Futurae utilizes (i) the futurae.com name, the futurae.com logo, the futurae.com domain name and subdomains, the product and service names associated with the Futurae Platform, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “Futurae Technology”) and (b) that the Futurae Technology is covered by intellectual property rights owned or licensed by Futurae (collectively, “Futurae IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Futurae Technology or Futurae IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved. Any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Futurae Platform are hereby assigned to Futurae.
4.1.2. Feedback. Customer acknowledges that Futurae desires to obtain comments, suggestions and feedback with respect to the Futurae Platform, in particular its operation, performance and reliability, including suggestions for improvement (collectively, “Feedback”). Customer agrees to provide Futurae with Feedback regarding the Futurae Platform, and any other information reasonably requested by Futurae. Customer agrees that such Feedback will be the sole and exclusive property of Futurae and Customer hereby irrevocably assigns to Futurae and agrees to assign to Futurae all rights, title, and interest in and to all Feedback, including all intellectual property rights therein.
4.2.1. Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, (i) all fees are quoted in Swiss Francs, (ii) fees are non-refundable, and (iii) Customer may not downgrade the purchased subscription level during the relevant Subscription Term stated in the Order Form (if applicable).
4.2.2. Invoicing & Payment. Fees for the relevant Subscription Term will be invoiced either monthly or annually in accordance with the terms set forth in the relevant Order Form and paid by credit card or bank transfer. Unless otherwise stated in the Order Form, charges are due net 30 days from the invoice date. Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in Swiss Francs. Invoices submitted via email should be sent in individual attachments (one invoice per attachment) in either PDF or TIFF formats to an email address provided by Customer.
4.2.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Futurae’s discretion, late charges at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.2.4. Suspension of Platform. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Futurae reserves the right to suspend the Futurae Platform provided to Customer, without liability to Customer, until such amounts are paid in full.
4.2.5. Taxes. Unless otherwise stated, Futurae’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Futurae’s income. If Futurae has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Futurae with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.2.6. Price Amendments. To the extent that Customer has purchased the use of SMS-based and/or phone call-based authentication, Futurae reserves the right to amend the price of these services at any point in time, subject to the price changes and fluctuations of the network providers, which are used by Futurae in order to provide these services to Customer. Futurae will notify Customer in writing (email being sufficient) of such price amendments. Any other type of fee is subject to price amendments as specified in Section 4.7.1.
4.3.1. Free Trials may only be installed in development and/or testing environments and used solely for evaluation purposes and not for the maintenance or processing of any data on which Customer would typically rely in a production capable environment. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (i) Futurae DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S USE OF THE SERVICE DURING A FREE TRIAL, and (ii) either party may terminate a Free Trial at any time with or without cause, immediately upon notice to the other party. The parties may extend the Subscription End Date set forth in the respective Free Trial Order Form upon mutual written agreement (email being sufficient).
4.4.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Futurae Platform, the Futurae Technology, business and marketing plans, technology and technical information, screen and product designs interoperability of the Futurae Platform with third party products and software, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.4.2. Non-Disclosure and Use Restrictions. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
4.4.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates’, employees, contractors and/or agents.
4.4.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
4.4.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 4.4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
4.5.1. Indemnification by Futurae. Subject to this Agreement, Futurae shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Futurae Platform as contemplated hereunder infringes or misappropriates the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Futurae in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to Futurae; (b) gives Futurae sole control of the defense and settlement of the Claim (provided that Futurae may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Futurae, at Futurae’s cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention and/or advice of separate counsel, at its own expense.
The foregoing obligations do not apply with respect to portions or components of the Futurae Platform (i) not created by Futurae, (ii) resulting in whole or in part from Customer specifications, (iii) that are modified after delivery by Futurae, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Futurae Platform is not strictly in accordance with this Agreement and all related Documentation. If Futurae receives information about an actual or alleged infringement or misappropriation claim that would be subject to indemnification rights set forth in this Section, Futurae shall have the option, at its expense, to: (a) modify the Futurae Platform to be non-infringing; or (b) obtain for Customer a license to continue using the Futurae Platform. If Futurae determines it is not commercially reasonable to perform either of the above options, then Futurae may at its option elect to terminate the license for the Futurae Platform and refund the unearned portion of any pre-paid fees, prorated on a monthly basis. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION AND/OR CLAIMS ALLEGING INFRINGEMENT OR MISAPPROPRIATION. Futurae’s obligations under this Section do not apply to Customer’s use of the Futurae Platform under a Free Trial.
4.5.2. Indemnification by Customer. Subject to this Agreement, Customer shall (a) defend, or at its option settle, any Claim made or brought against Futurae by a third party (i) alleging that (i) the Customer Data or Customer’s unlawful use of the Futurae Platform (as opposed to the Futurae Platform itself), or (ii) any Customer Application infringes or misappropriates the intellectual property rights of, or has otherwise harmed, a third party and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Customer in a monetary settlement of such Claim; provided, that Futurae (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Futurae of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. Futurae will have the right to participate in the defense, including retention and/or advice of separate counsel, at its own expense.
4.6.1. Limitation of Liability. EXCEPT FOR ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
4.6.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
4.7.1. Term of Agreement. Subject to earlier termination as expressly provided for in this Agreement, the initial Term of this Agreement shall be for the Term specified in the Order Form, or in the event of multiple Order Forms, until the Term of all Order Forms has expired. Each Order Form and this Agreement shall automatically renew after the initial Term and any renewal Term for a renewal Term equal to the expiring subscription Term, unless either party provides to the other at least forty-five (45) days prior written notice that it will not renew. The fees for each renewal Term will be equal to the fees for the immediately prior Term, plus a price increase. Any pricing increase will not exceed seven percent (7%) per year, unless the pricing was designated in the applicable Order Form as promotional or one-time.
4.7.2. Effect of Termination. Upon termination or expiration of this Agreement, the rights and licenses granted to Developer under this Agreement will automatically terminate, and Customer will uninstall and delete, from all Customer desktop, mobile, server, web and other environments, any Futurae provided software related to the Futurae Platform, as well as any other Confidential Information in Customer’s possession or control. This includes managed packages or other software that has been installed in Customer environments.
4.7.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party 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. Upon any termination for cause by Customer, Customer shall be entitled as its sole and exclusive remedy, to receive a refund of any prepaid fees paid by Customer to Futurae for provision of the Futurae Platform not rendered as of the termination date.
4.7.4. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Futurae prior to the effective date of termination.
4.7.5. Surviving Provisions. Section 4 (including all subsections) shall survive any termination or expiration of this Agreement.
4.8.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
4.8.2. No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
4.8.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
4.8.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
4.8.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
4.8.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
4.8.7. Attorneys’ Fees. In any legal action or proceeding arising from, related to, or brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions (including any Order Forms executed hereunder), the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, in addition to any other relief to which it may be entitled.
4.8.8. Governing Law. This Agreement and all claims arising from it shall be exclusively governed by the law of the Swiss Confederation to the exclusion of the provisions of Private International Law (PIL) and the UN Convention on Contracts for the International Sale of Goods (CISG).
4.8.9. Venue. Zurich, Switzerland is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the fulfillment of this contractual relationship. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
4.8.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Unless otherwise specified in the preamble of this Agreement, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Installation and/or use of third party software applications may require the User to accept certain “click-through” terms. Such terms flow directly between the User and such third party.
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