EULA for Customers of Resellers and Value-Added Resellers
Current as of: 15th August 2023
This End User Licence Agreement (EULA) contains the terms and conditions that govern your access and use of Services (as defined below) obtained through a reseller or value-added reseller (VAR) authorised by Futurae. This EULA is a contract between Futurae Technologies AG, of Eichstrasse 23, 8045 Zurich, Switzerland (Futurae), and you or the entity or organisation that you represent.
If you are entering into this EULA as an individual: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this EULA.
If you are entering into this EULA on behalf of an entity or organisation that you represent: (1) all references to “Customer” are to that entity or organisation and (2) you represent and warrant that you have the right, power and authority to enter into this EULA on behalf of Customer.
This EULA become binding and effective on Customer upon the earliest of: (1) when you access or use Services obtained through a reseller or VAR authorised by Futurae, (2) when you click an “I Accept,” “Sign up” or similar button or checkbox referencing this EULA, or (3) when you enter into a Customer Order (as defined below) with a reseller or VAR authorised by Futurae.
Capitalised terms not otherwise defined in this EULA will have the respective meanings assigned to them in Paragraph 24 (Definitions). Futurae may modify this EULA from time to time, subject to the terms in Paragraph 25 (Changes to this EULA) below.
1. Customer Orders
This EULA governs Customer’s access and use of Futurae’s Services in connection with a Customer Order between Customer and either a Reseller or a VAR (Partner), as applicable. Customer acknowledges that the agreement between Futurae and Partner authorising Partner as a Reseller or a VAR (Partner Contract) requires Partner to incorporate this EULA into all Customer Orders, and Customer expressly agrees that Futurae shall have the benefit of and right to enforce this EULA against Customer. In the event any provision of this EULA is deemed to conflict with a provision of a Customer Order or other agreement between Customer and Partner with respect to Services or other subject matter of this EULA, the applicable provision of this EULA shall prevail as between Customer and Futurae.
2. Access and Use
2.1 Subject to a Customer Order and this EULA, Customer may access and use the Services in accordance with the Documentation during the Customer Order Term for Customer’s Environment. As between the Parties, Customer controls Customer’s Environment and its individual components (Customer Component), whether owned, leased or licensed by Partner or Customer, located on Partner’s or Customer’s premises or cloud-based, used by Partner or Customer on a software-as-a-service basis or otherwise. Customer will be able to use the Services by establishing integrations or other connections to one or more Customer Components (Connection). By implementing a Connection to a Customer Component, Customer hereby grants to Futurae the right, and is expressly instructing Futurae, to access and interoperate with that Customer Component during the Customer Order Term in order to provide and support the Services. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its and, if applicable, its Partner’s access and use of Customer Components and associated data (Third-Party Terms).
2.2 Through Customer’s configuration and use of Connections and Services, Customer has control over the types and amounts of data from Customer’s Environment that are submitted for Processing by the Services (Customer Data). By submitting Customer Data to the Services, Customer hereby grants to Futurae the right, and is expressly instructing Futurae, to Process Customer Data during the Customer Order Term in order to provide and support the Services and as otherwise provided in this EULA.
2.3 All rights granted by each Party to the other under this Paragraph 2 are limited, nonexclusive and, except as otherwise provided in this EULA, non-transferable.
3. Support
3.1 If Customer is using the Services under a Reseller Customer Order, subject to this EULA, dependent on the plan applicable Futurae will provide Support Service to Authorised Users either by telephone or by email. Although resolution times are not guaranteed, Futurae commits to respond to each request for Support Service from an Authorised User (support ticket) as set out in the support service level agreement (Support SLA), currently available at https://www.futurae.com/legal/support-sla. Customer’s sole and exclusive remedy for any alleged failure by Futurae to provide Support Service with reasonable skill, care and diligence following a support ticket shall be re-performance of the applicable Support Service.
4. APIs and Tools
One or more APIs will be available to Customer to assist with Customer’s implementation of Connections, and Futurae makes client libraries available to facilitate Customer’s coding against the API(s). In addition, Authorised Users may install a Futurae-produced software agent on certain Customer Components to support Customer’s collection of Customer Data. As between the Parties, Customer determines and controls what APIs and Ancillary Tools (if any) to use in connection with the Services. By using an API or Ancillary Tool in connection with the Services, Customer hereby agrees to do so in accordance with the Documentation and, in the case of the Ancillary Tool, with the applicable open source licences (provided that if an applicable open source licence for an Ancillary Tool contradicts rights or restrictions in the Documentation, the licence will take precedence). The Ancillary Tools are not “Services” or “Support Service” for purposes of this EULA.
5. Hosting and Other Providers
Futurae uses third-party hosting providers and other service providers to support the provision of the Services and Support Service in the ordinary course of its business, i.e., not specifically for Partner or Customer (Futurae Providers). Futurae reserves the right to engage and substitute Futurae Providers as it deems appropriate, but shall: (a) remain responsible to Customer for the provision of the Services and Support Service as provided in this EULA and (b) be liable for the actions and omissions of its Futurae Providers undertaken in connection with Futurae’s performance of this EULA to the same extent Futurae would be liable if performing the Services or Support Service directly. In no event shall Partner or providers of Customer Components be deemed Futurae Providers for any purpose under this EULA.
6. Security and Privacy
6.1 As discussed in the Documentation, including at https://www.futurae.com/docs/guide/, each Party has obligations with respect to the security of the Services and Customer Data. Taking into account the nature and types of Customer Data, Futurae will employ administrative, physical and technical measures in accordance with applicable industry practice to protect the Services and prevent the accidental loss or unauthorised access, use, alteration or disclosure of Customer Data under its control during each Customer Order Term.
6.2 Customer is responsible for properly configuring the Services in accordance with the Documentation, enabling single sign-on for Customer’s accounts, and securing access passwords, keys, tokens or other credentials used by Customer in connection with the Services (Customer Credentials). Customer agrees to use reasonable efforts to prevent unauthorised access or use of the Services and to promptly notify Futurae if Customer believes that (a) any Customer Credentials have been lost, stolen or made available to an unauthorised third party or (b) an unauthorised third party has accessed the Services or Customer Data.
6.3 Except for limited Personal Data in Account Data, Futurae does not require Personal Data for Customer’s access and use of the Services. Customer shall limit Personal Data in Account Data to only that necessary for the creation and administration of its Futurae accounts. With regard to Customer Data, except as may otherwise be expressly provided in applicable Supplemental Terms, Customer shall not use the Services to Process any Sensitive Data and shall use reasonable efforts to restrict the inclusion of other Personal Data in Customer Data.
6.4 Futurae may Process information about Customer’s configuration and use of the Services (Usage Data), Customer Data and Account Data: (a) to manage Partner’s and Customer’s accounts, including to calculate fees for the Services; (b) to provide and improve the Services and Support Service, including to address support tickets and troubleshoot other issues; and (c) to provide Partner, Customer and Authorised Users insights, service and feature announcements and other reporting. Futurae may also Process Usage Data that has been aggregated and/or anonymized (including, for clarity, that does not allow a third party to identify Partner or Customer as the source of the information): (i) to develop new services and features and (ii) to promote Futurae’s services, including, for example, through analyses of patterns and trends. Futurae’s Processing of Usage Data, Customer Data and Account Data shall at all times be subject to Futurae’s obligations under this EULA, including those of security under Paragraph 6.1 and confidentiality under Paragraph 11; the DPA (as defined in Paragraph 8.1), if applicable; the Supplemental Terms, if applicable; and, with respect to Account Data, the Privacy Policy.
7. Customer Responsibilities and Restrictions
7.1 As between the Parties, Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorised Users’ access and use of the Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to Futurae’s Processing obligations under this EULA; (c) providing any required notices to, and receiving any required consents and authorisations from, Customer Component providers, Authorised Users and persons whose Personal Data may be included in Account Data, Customer Data or Customer Credentials; and (d) ensuring use of the Services is only for Customer’s Environment and in accordance with the AUP, Documentation and applicable Third-Party Terms.
7.2 No provision of this EULA includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorised Users and Partner (if acting as a VAR) to access and use the Services; (b) attempt to gain unauthorised access to any Service or its related systems or networks; (c) use any Service to access Futurae Intellectual Property Rights except as permitted under this EULA; (d) modify, copy or create any derivative work based upon a Service or any portion, feature or function of a Service; (e) resell, distribute or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Services or access or use the Services or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure or alter any proprietary notice related to the Services; (h) send or store Malicious Code; (i) use or permit others to use the Services in violation of Applicable Law; or (j) use or permit others to use the Services other than as described in the applicable Customer Order, Documentation and this EULA.
7.3 Futurae reserves the right to investigate potential violations of the above provisions of this Paragraph 7. In the event Futurae reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Paragraph 13.1), Futurae will have the right to suspend Authorised Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Except where Futurae reasonably believes the violations are willful, or in urgent or emergency situations, if Customer is using the Services under a Reseller Customer Order, Futurae will notify Customer of any such suspension in advance (Suspension Notice) and work with Customer in good faith to resolve the potential violation. For clarity, Futurae reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice) or Partner, to take any of the actions described in this Paragraph 7.3.
8. Compliance with Applicable Law
Each Party agrees to comply with all Applicable Law with respect to its performance of its obligations and exercise of its rights under this EULA. Without limiting the foregoing:
8.1 Each Party shall comply with Applicable Law concerning the privacy and protection of Personal Data. Without limiting Paragraph 7.1, Customer will be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorisations required by Applicable Law from, persons whose Personal Data may be included in Account Data, Customer Data or Customer Credentials. Without limiting Paragraph 6.3 and any applicable Supplemental Terms, if Customer (a) is using the Services under a Reseller Customer Order, (b) believes Customer Data may include the Personal Data of natural persons located in the European Economic Area, Switzerland, the UK, or any other jurisdiction with similar applicable data protection law, and (c) wishes to execute a Data Processing Addendum (DPA) pursuant to the European Data Protection Law, US Data Protection Law or similar applicable legislation elsewhere, Customer may do so at https://www.futurae.com/legal/dpa or by submitting a request by email to legal@futurae.com. Promptly following Futurae’s receipt of Customer’s request, Futurae will send Customer a DPA ready for execution. If Customer is using the Services under a VAR Customer Order, Partner may submit a request directly to Futurae to execute a DPA in connection with its Partner Contract.
8.2 Each Party shall comply with Applicable Law concerning anti-bribery and anti- corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the date of this EULA and the date of each Customer Order, Customer represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any employee, agent or representative of Futurae, Partner or either of their Affiliates in connection with any Customer Order or this EULA. Customer agrees to promptly notify Futurae if it learns of any violation of the foregoing. This representation is not intended to include customary and reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.
8.3 Each Party shall (a) comply with Applicable Law administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (Export Laws), including designating countries, entities and persons (Sanctions Targets) and (b) not directly or indirectly export, reexport or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this EULA under Applicable Law, including Export Laws.
9. Pricing and Fees
Pricing and payment of fees for the Services are solely between Customer and Partner.
10. Ownership
As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s Environment and Customer Data, including in each case all associated Intellectual Property Rights, and (b) Futurae owns all right, title and interest in and to the Services, Documentation and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this EULA, all rights are reserved by the granting Party.
11. Confidentiality
11.1 As used in this EULA, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; and (c) third-party information that the Discloser is obligated to keep confidential. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this EULA; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
11.2 The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this EULA without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to Partner or to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this EULA and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this EULA. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Paragraph 11, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
12. Disclaimers
12.1 EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.2 EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ALL SERVICES, SUPPORT SERVICE AND ANY OTHER MATERIAL ARE PROVIDED BY FUTURAE ON AN “AS IS” AND “AS AVAILABLE” BASIS. FUTURAE MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY CUSTOMER COMPONENT. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS PARAGRAPH 12, FUTURAE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, ANCILLARY TOOLS OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER COMPONENTS. ANY CHANGES TO CUSTOMER COMPONENTS (INCLUDING THEIR UNAVAILABILITY) OR THIRD-PARTY TERMS DURING A CUSTOMER ORDER TERM DO NOT AFFECT CUSTOMER’S OBLIGATIONS UNDER THESE TERMS.
13. Term and Termination
Except as otherwise provided in this Paragraph, this EULA continues through the expiration or earlier termination of the last Customer Order to be in effect.
13.1 Futurae may terminate Customer’s access to the Services and this EULA (Subscription Termination): (a) if Customer materially breaches this EULA, and such breach (if capable of cure) remains uncured 30 days after Futurae provides notice of such breach; (b) if Partner fails to pay any amount due under its Partner Contract and such failure remains uncured following the cure period specified in its Partner Contract; (c) when the Partner Contract terminates where Customer is using the Services under a VAR Customer Order; (d) if Partner materially breaches its Partner Contract, and such failure or other breach remains uncured following the cure period specified in its Partner Contract, where Customer is using the Services under a VAR Customer Order; or (d) pursuant to Paragraph 14.2.
13.2 Subject to Futurae’s rights under Paragraph 13.1, if Customer is using the Services under a Reseller Customer Order and the Partner Contract terminates, any active subscription to the Services under the Reseller Customer Order shall remain governed by this EULA and in effect until the end of its subscription term.
13.3 Upon expiration or earlier termination of a Customer Order or a Subscription Termination, subject to Paragraph 13.5, all rights granted to Customer with respect to Services will terminate effective as of the effective date of termination and Futurae will have no obligation to provide Services to Partner, Customer or Authorised Users after the effective date of the termination.
13.4 In the event of a Subscription Termination pursuant to Paragraph 14.2, Futurae will refund to Partner upon request a pro rata share of any unused amounts prepaid by Partner under the applicable Customer Order for the Services on the basis of the remaining portion of the current subscription term (Pro-Rated Refund). Futurae will issue the Pro-Rated Refund directly to Partner and any pass-through of some or all of that amount will be between Partner and Customer under the Customer Order. In no event will any termination, expiration or suspension of Services, this EULA, any Customer Order or the Partner Contract give rise to any liability of Futurae to Customer for refunds or damages.
13.5 If Customer is using the Services under a Reseller Customer Order, subject to any applicable shorter Service retention periods and subject always to the terms of the DPA requiring expressly that such access and use be made available, for up to 30 days from the effective date of termination of this EULA, an Authorised User designated by Customer will be permitted to continue to access and download Customer Data that was accessible to Authorised Users through the Services immediately prior to termination. The designated Authorised User’s access and use will continue to be subject to the terms of this EULA and of the DPA, provided the Authorised User shall not access or use the Services other than to download Customer Data.
13.6 The provisions set forth in the following Paragraphs, and any other right or obligation of the Parties in this EULA that, by its nature, should survive termination or expiration of this EULA, will survive any expiration or termination of this EULA: 6.4, 7.2, 8 through 15, and 17 through 26.
14. Indemnification
14.1 Subject to Paragraphs 14.2 and 14.4, Futurae agrees to defend, indemnify and hold harmless Customer, its Affiliates and their employees, contractors, agents, officers and directors (Customer Indemnitees), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (Losses) arising out of or related to any legal claim, suit, action or proceeding (Action) by a third party (other than Partner or its Affiliate) alleging that use of the Services as permitted under this EULA infringes such third party’s patent or copyright, or misappropriates such third party’s trade secrets (Customer Infringement Claim).
14.2 If the Services become, or in Futurae’s opinion are likely to become, the subject of a Customer Infringement Claim, Futurae may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Services; (b) modify the Services so that they no longer infringe or misappropriate; or (c) terminate Customer’s access to the Services and this EULA and issue a Pro-Rated Refund to Partner. Futurae will have no obligation to indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (CustomerControlled Matters): (i) Customer’s Environment, including Connections to Customer Components, whether enabled through APIs, Ancillary Tools or otherwise; (ii) Account Data, Customer Data or Customer Credentials (including activities conducted with Customer Credentials), subject to Futurae’s Processing obligations under this EULA; or (iii) use of the Services by Partner (if acting as a VAR), Customer or an Authorised User in a manner that breaches a Partner Contract, Customer Order, Service Plan or this EULA. PARAGRAPHS 14.1 AND 14.2 STATE FUTURAE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.
14.3 Subject to Paragraph 14.4, Customer agrees to defend, indemnify and hold harmless Futurae, its Affiliates and their employees, contractors, agents, officers and directors (Futurae Indemnitees), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to Customer- Controlled Matters.
14.4 A Customer Indemnitee or Futurae Indemnitee (Indemnitee) seeking indemnification shall promptly notify the other Party (Indemnifying Party), in writing of any Action for which it seeks indemnification pursuant to Paragraph 14.1 or 14.3 (as applicable) and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Paragraph 14.4 will not relieve the Indemnifying Party of its obligations under Paragraph 14.1 or 14.3 (as applicable) except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.
14.5 None of Partner, its Affiliates or their employees, contractors, agents, officer or directors shall be deemed Customer Indemnitees for purposes of this EULA. Any indemnification obligations Futurae may have to Partner and such other parties are as specified in the Partner Contract.
15. Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH 15, IN NO EVENT SHALL: (a) FUTURAE, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS HAVE ANY LIABILITY TO CUSTOMER OR ANY AUTHORISED USER FOR ANY LOSSES ARISING OUT OF OR RELATING TO (i) PARTNER’S RESALE OF SERVICES TO CUSTOMER, (ii) PARTNER’S PROVISION OF MANAGED SERVICES (INCLUDING THE SERVICES) TO CUSTOMER, (iii) PARTNER’S PROCESSING OF ANY ACCOUNT DATA, CUSTOMER DATA OR CUSTOMER CREDENTIALS OR (iv) ANY CUSTOMER ORDER, SUBJECT TO FUTURAE’S OBLIGATIONS UNDER THESE TERMS; (b) EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THESE TERMS; AND (c) EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THESE TERMS EXCEED THE FEES PAID TO FUTURAE BY PARTNER UNDER THE APPLICABLE CUSTOMER ORDER(S), INCLUDING PRIOR CUSTOMER ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS PARAGRAPH (EXCLUSIONS) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXCLUSIONS SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER PARAGRAPH 14 OR CUSTOMER’S BREACH OF PARAGRAPH 7.2. THE PROVISIONS OF THIS PARAGRAPH 15 ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THESE TERMS.
16. Publicity
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this EULA or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Futurae may (subject its obligations of non-attribution under Paragraph 6.4) include Customer’s name and logo in its lists of Futurae customers, its public website and other promotional material. Futurae agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to legal@futurae.com.
17. Notices
Subject to change pursuant to this Paragraph: (a) Futurae’s physical address for notices is that of its Zurich, Switzerland headquarters provided at https://futurae.com, Attn: Legal Notice, and its email address for notices is legal@futurae.com and (b) Customer’s physical and email addresses for notices are those designated in the Services. Notices required or permitted to be given under this EULA shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable Action must be sent by courier or mail pursuant to sub-paragraph (i) or (ii)). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Paragraph. Notwithstanding the foregoing, any notice required or permitted under this EULA to Customer may be provided by Futurae either to Partner in accordance with the Partner Contract or to Customer, in each case as determined by Futurae in its sole discretion based on the circumstances.
18. Assignment
So long as Customer remains current in the payment of all amounts when due, Customer may assign this EULA together with its assignment of all Customer Orders in connection with any merger, consolidation or reorganisation involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this EULA to an unaffiliated third party. Subject to the foregoing, Customer may not assign any of its rights or obligation under this EULA, whether by operation of law or otherwise, without Futurae’s prior written consent, and any purported assignment in violation of this Paragraph is void. This EULA are binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
19. Relationship of Parties
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this EULA shall constitute one Party as an employee, agent, joint venture partner or servant of another. Customer acknowledges that VARs and Resellers are not agents or representatives of Futurae, and that Futurae accepts no responsibility for the actions or omissions of Partner.
20. Third-Party Beneficiaries
This EULA are for the sole benefit of Futurae and Customer and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on Partner or any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA. For clarity: (a) Partner is not a third-party beneficiary of this EULA; (b) Customer is not a third-party beneficiary of any Partner Contract; and (c) Futurae is not a party to any Customer Order or other agreement between Customer and Partner; provided, however, that Futurae is a third-party beneficiary with respect a Customer Order as it relates to this EULA.
21. Force Majeure
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this EULA, for any failure or delay in fulfilling or performing any term of this EULA, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this EULA; or national or regional emergency (Force Majeure Event), in each case, provided the event is outside the reasonable control of the affected Party, the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue, and the affected Party uses diligent efforts to end the failure or delay and minimise the effects of such Force Majeure Event.
22. Governing Law and Venue
This EULA shall be governed by and construed and enforced in accordance with the laws of the Swiss Confederation. Any legal action or proceeding arising under or relating to this EULA shall be brought exclusively in the state or federal courts located in Zurich, Switzerland, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods and all provisions of Private International Law are specifically excluded from application to this EULA.
23. Miscellaneous
This EULA, together with the AUP and, as and if applicable, Supplemental Terms and DPA, are the complete and exclusive statement of the agreement between the Parties and supersede all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this EULA. Any terms and conditions of any other instrument issued by Partner or Customer in connection with this EULA which are in addition to, inconsistent with or different from the terms and conditions of this EULA shall be of no force or effect. Additionally, this EULA supersede any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect Customer’s or an Affiliate’s evaluation of the Services or otherwise with respect to the Services. Except as otherwise provided in Paragraph 25, this EULA may be modified only by a written instrument duly executed by authorised representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this EULA will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this EULA shall not be construed as a waiver of any other condition, term or provision. If any provision of this EULA is held invalid or unenforceable, the remainder of the Terms shall continue in full force and effect. The headings in this EULA are for reference only and shall not affect the interpretation of this EULA. For purposes of this EULA, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this EULA as a whole.
24. Definitions
Capitalised terms not otherwise defined in this EULA shall have the respective meanings assigned to them in this Paragraph 25.
“Account Data” means information about Customer that Partner or Customer provides to Futurae in connection with the creation or administration of Customer’s Futurae accounts, such as first and last name, user name and email address of an Authorised User or Customer’s contact for notices under Paragraph 17. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Customer Order Term, and shall in no event include Sensitive Data in Account Data.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“API” means an application programming interface referenced in the Documentation that Futurae maintains and makes available to Customer in connection with the Services. “Applicable Law” means any and all governmental laws, rules, directives, regulations or Customer Orders that are applicable to a particular Party’s performance under this EULA.
“AUP” means Futurae’s standard Acceptable Use Policy, currently available at https://futurae.com/legal/aup.
“Authorised User” means an individual customer, employee, agent or contractor of Customer for whom subscriptions to Services have been purchased pursuant to the terms of the applicable Customer Order and this EULA, and who has been supplied user credentials for the Services by Partner or Customer (or by Futurae at Partner’s or Customer’s request).
“Customer Order” means a completed agreement for Services between Partner and Customer. “Customer Order Term” means, with respect to each Customer Order, the subscription term for the Services specified in the applicable Customer Order.
“Customer’s Environment” means, exclusive of Services, the systems, platforms, services, software, devices, sites and/or networks that Customer uses (or, if applicable, Partner uses on Customer’s behalf as a VAR) in Customer’s own internal business operations.
“Documentation” means Futurae’s standard user documentation for the Services, currently available at https://www.futurae.com/docs/guide/.
“European Law” means the law and regulation of the European Union (“EU”), the European Economic Area (“EEA”), their member states, Switzerland, and the United Kingdom applicable to the processing of Personal Data under the Main Agreement (including, as applicable, (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) ("EU GDPR"); (ii) the EU GDPR as retained into United Kingdom law by virtue of Section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018 ("UK GDPR"); (iii) the Swiss Federal Data Protection Act of 19 June 1992 and its corresponding ordinances (“Swiss DPA”); (iv) the EU e-Privacy Directive (Directive 2002/58/EC); and (v) any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii), (iii), (iv) and any amending, updating or replacing legislation or regulation from time to time in force.
“Feedback” means bug reports, suggestions or other feedback with respect to the Services or Documentation provided by Customer to Futurae, exclusive of any Customer Confidential Information therein.
“GDPR” means the EU GDPR and the UK GDPR.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Partner Contract” has the meaning assigned to that term in Paragraph 1, and for the avoidance of doubt, includes any orders for Services entered into between Partner and Futurae.
“Party” means each of Futurae and Customer.
“Personal Data” means information relating to an identified or identifiable natural person that is protected by Applicable Law with respect to privacy where the individual resides.
“Privacy Policy” means Futurae’s standard Privacy Policy, currently available at https://futurae.com/legal/privacy-policy/.
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organise, structure, store, adapt or alter; “Processing” has a correlative meaning.
“Reseller” means a party that is authorised by Futurae to resell subscriptions to the Services to Customer.
“Reseller Customer Order” means a Customer Order entered into by Partner in its capacity as a Reseller.
“Sensitive Data” means the following categories of Personal Data: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; and (g) data relating criminal convictions and offences. Without limiting the foregoing, the term “Sensitive Data" includes Personal Data that is subject to specific or heightened requirements under Applicable Law or industry standards, such as Social Security numbers in the United States, protected health information under the U.S. Health Insurance Portability and Accountability Act, non-public personal information under the U.S. Gramm-Leach-Bliley Act, cardholder data under the PCI Data Security Standard, and special categories of personal data under the GDPR.
“Services” means the services, including the APIs, the Administrative Console and the mobile application services to which Customer subscribes through, or otherwise uses following, a Customer Order that are made available by Futurae online via the applicable web page (https://futurae.com) and other web pages and/or mobile app stores designated by Futurae. Futurae may make such changes to the Services as Futurae deems appropriate from time to time, provided such changes do not materially decrease the features or functionality of the Services as they existed at the effective date of this EULA. For purposes of this EULA, the term Services does not include alpha, beta or other pre-commercial releases of a Futurae product or service (or feature of functionality of a Service).
“Supplemental Terms” means additional terms that apply to certain Customer Data, Services and/or Customers, including any applicable Service-Specific Terms, which are uploaded from time to time at https://futurae.com. “Support Service” means Futurae’s standard customer support for the Services, currently described at https://futurae.com/legal/support-sla.
“US Law” means the law and regulation of the United States applicable to the processing of Personal Data under the Main Agreement, including (i) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (Cal. Civ. Code § 1798.100 - 1798.199, 2022) and its implementing regulations (“CCPA”), (ii) the Virginia Consumer Data Protection Act, when effective, (iii) the Colorado Privacy Act and its implementing regulations, when effective, (iv) the Utah Consumer Privacy Act, when effective; and (v) Connecticut SB6, An Act Concerning Personal Data Privacy and Online Monitoring, when effective, (vi) the applicable data protection laws made at federal or state level from time to time in force; and any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii), (iii), (iv), (vi) and any amending, updating or replacing legislation or regulation from time to time in force.
“VAR” means a party that is authorised by Futurae to access, use and support the Services as part of its provision of value-added services (including the Services) to Customer, and to grant to Customer subscriptions to the Services as a part thereof for Customer’s own internal use.
“VAR Customer Order” means a Customer Order entered into by Partner in its capacity as a VAR.
25. Changes to this EULA
Futurae may modify this EULA at any time by posting a revised version at https://futurae.com/legal/EULA/, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if a Customer Order specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewal term, if any. In either case, if Customer objects to the updated Terms, as its sole and exclusive remedy, Customer may choose not to renew, including cancelling with Partner any terms set to auto-renew. For the avoidance of doubt, any Customer Order is subject to the version of the Terms in effect at the time of the Customer Order.