Version 1.1 — Effective April 15, 2019
These Terms apply in addition to the Agreement. In the event of any conflict between these Terms and the Agreement, as pertains to Futurae Professional Services only, these Terms shall prevail to the extent of any inconsistency. In the event of any conflict between these Terms and any Statement of Work executed hereunder, these Terms shall prevail to the extent of any inconsistency, except with regard to any provision of any Statement of Work that specifically identifies a conflicting provision of these Terms and states that the conflicting provision of these Terms does not prevail.
1.1. “Futurae API” means the application programming interface(s) used by or on behalf of Customer to access the Futurae Service.
1.2. “Futurae Platform” means the Futurae SDK and the Futurae Service.
1.3. “Futurae SDK” means any and all software development kit (SDK) provided or managed by Futurae under an Order Form.
1.4. “Futurae Service” means the online, Web-based services, including the Futurae API and the Futurae mobile applications, provided or managed by Futurae under an Order Form.
2.1. These Terms apply only to the extent that Customer and Futurae execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by Futurae for Customer.
3.1. Scope. Futurae will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Futurae with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
3.2. Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 5 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, Futurae may revise and redeliver the Deliverable, and thereafter the procedures of this Section 3.2 will repeat.
3.3. Subcontracting. Futurae may subcontract any portion of its obligations under a SOW to a third party. With respect to any such obligations of Futurae performed by subcontractors, Futurae shall be and shall remain responsible for such obligations and the performance of Professional Services and creation of Deliverables hereunder by all of its subcontractors and for the acts and omissions of all such subcontractors.
4.1. Payment. Customer will pay Futurae the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay Futurae within thirty (30) calendar days from the date of invoice.
4.2. Other Expenses. Customer shall reimburse Futurae for travel time and other expenses incurred in performance of Professional Services pursuant to the Futurae travel policy, so long as Customer has previously approved the expense or range of expenses in question.
5.1. Term. Each SOW will continue for the term set forth therein, if any.
5.2. Termination. Unless the SOW provides to the contrary, Customer may terminate a SOW for convenience upon 30 days’ written notice to Futurae. Either party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in these Terms, on 30 days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate.
5.3. Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Futurae such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Futurae the reasonable value of the Professional Services received from Futurae up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or these Terms or the Agreement.
6.1. Futurae owns and retains ownership of all Deliverables, including, without limitation, software, source code, binary files, or other materials, whether preexisting or created under a SOW, and whether provided standalone or incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable. Customer’s sole right with regard to Deliverables is to use them in conjunction with the Futurae Platform during the applicable Subscription Term(s). Futurae does not acquire any intellectual property rights or any other rights in the Customer Data, Confidential Information, products, systems, software, hardware, or networks provided by or on behalf of Customer and being used by Futurae in connection with the provision of Professional Services under this Agreement.
7.1. Intellectual Property. Futurae represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. Futurae’s sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for Futurae: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in Futurae’s reasonable judgment, (3) to suspend use of the Deliverable in question and refund to Customer 1/36th of the fees paid for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
7.2. Professionalism & Function. Futurae warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Futurae further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Futurae’s sole liability and responsibility for breach of any warranty in this Section 7.2 shall be for Futurae to re-perform the Professional Services in question, including creation of Deliverables.
8.1. Subject to the 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 Deliverable as contemplated hereunder infringes 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 of and/or advice of separate counsel, at its own expense.
The foregoing obligations do not apply with respect to portions or components of the Deliverables (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 Deliverables is not strictly in accordance with the SOW and these Terms.
9.1. Futurae Platform vs. Professional Services. Professional Services are not part of the Futurae Platform.
Construction. Neither party’s acts or omissions related to Professional Services, to a SOW, or to these Terms, including without limitation breach of a SOW or of these Terms, will give the other party any rights or remedies not directly related to the SOW in question. For instance, Futurae’s breach of a SOW that does not otherwise violate Futurae’s obligations under the Agreement will not give Customer any rights or remedies not directly related to the SOW in question, including the right to terminate the Agreement or the right to a refund of fees paid for the Futurae Platform or of other fees paid not pursuant to such SOW. This, however, does not limit any other rights or remedies that Customer may have under the Agreement related to Futurae’s obligations. In addition to such other limits of liability as apply, including pursuant to the Agreement, Futurae’s TOTAL AGGREGATE LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW.